UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


NOTES 

TO 

CLARK  ON  CONTRACTS 


BY 

CHARLES  A.  GRAVES 

University  of  Virginia 


Jmmes  B.  Howe, 
Si&na  ®tt*.  He  us* 
University, 


NOTES 


TO 


CLARK  ON  CONTRACTS 


BY 

C.  A.  GRAVES 

u  \ 

UNIVERSITY  OF  VIRGINIA 


The  Michie  Company,  Printer* 

Charlottesville,  Va. 

1910 


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Notes  to  Clark  on  Contracts. 


1.  When  «•  a  contract  by  letter  complete?    As  soon  as  the 
offeree  /»oj^  his  letter  of  acceptance,  in  a  reasonable  time  after 
the  receipt  of  the  offer,  provided  he  has  not  meanwhile  received 
notice  of  the   revocation   of  the  offer.     See   Clark,  25-27,  33- 
34,  where  Massachusetts  is  mentioned  as  the  only  State  which 
holds  that  an  acceptance  is  not  communicated  until  it  is  received 
by  the  offerer.  And  in  Langdell's  Summary  of  the  Law  of  Con- 
tracts (§§  12;   14;  180-181),  it  is  contended  that,  on  principle, 
where  the  contract  is  bilateral  (i.  e.,  a  promise  for  a  promise),  it 
is  necessary   in  order  to  complete  the   contract  that  the  offerer 
should  receive  notice  of  acceptance;  but  Prof.  Langdell  concedes 
that  it  is    otherwise    when    the    contract    is    unilateral   (i.  e.,    a 
promise  for  an  act,  or  an  act  for  a  promise),  when  no  notice 
of  acceptance  is  required. 

2.  Can  Cooke  v.  Oxley,  3  Term  Rep.   (Durnford  and  East) 
653,  be  defended  on  principle?     See  Clark,    35,    note    34.     In 
Cooke  v.  Oxley,  Oxley  agreed  to  sell  specific  goods  to  Cooke  on 
certain  terms,  and  to  keep  the  offer  open  until  4  o'clock  that  day. 
Cooke  averred  that  he  did  agree  to  buy  within  the  time  allowed, 
but  that  Oxley  failed  to  deliver.     The  court  decided  in  favor  of 
Oxley.    The  decision  has  caused  much  difficulty,  and  it  has  been 
suggested  that  the  case  is  inaccurately  reported.     Boston,  etc., 
R.   Co.  v.  Bartlett,  3  Cush.    (Mass.)   224.     It  seems  that  the 
offer   remained   unrevoked   until   the   return  of   Cooke,   and   its 
acceptance  by  him,  before  4  o'clock,  and  it  is  now  settled  law 
that,  while  a  time  offer  is  revocable  at  pleasure,  yet  its  accept- 
ance during  the  time,  while  it  remains  unrevoked,  makes  a  bind- 
ing contract.     It  is  possible  that  from  any  point  of  view  the 
decision  was  wrong,  but  it  has  been  attempted  to  explain  the 
case  on  the  ground  that  the  declaration  did  not  allege  (though 
such  was  the  fact)  that  at  the  time  of  the  acceptance  the  offer 
remained  unrevoked.     But  Prof.  Langdell  shows  that  this  was 


4  NOTES   TO  CLARK  ON    CONTRACTS 

not  a  necessary  allegation  by  the  plaintiff,  as  the  law  would  pre- 
sume a  time  offer  to  continue  until  the  time  expires,  and  it  is 
not  necessary  in  pleading  to  allege  what  the  law  will  presume; 
and  if  the  offer  had  been  revoked,  this  was  a  matter  to  be  al- 
leged and  proved  by  the  defendant.  See  Langdell,  Summary  of 
Law  of  Contracts,  Sec.  182. 

3.  What  is  a  sealed  instrument  now  in  Virginia?  For  the 
requisites  of  a  seal  at  common  law,  see  Clark  52-53,  citing 
Pierce  v.  Indseth,  106  U.  S.  546,  holding  that  it  is  sufficient  if 
an  impression  is  made  on  the  paper  itself  on  which  the  instru- 
ment is  written,  without  the  intervention  of  wax  or  wafer. 
And  see  Jacksonville,  etc.,  R.  Co.  v.  Hooper,  160  U.  S.  514, 
which  seems  to  decide  that,  even  in  the  absence  of  statute,  a 
scroll  may  be  a  sufficient  seal,  if  it  be  so  intended. 

In  Virginia  it  is  enacted  (Code  Va.,  Sec.  2841)  as  follows: 
"Any  writing  to  which  a  natural  person  making  it  shall  affix 
a  scroll  by  way  of  seal  shall  be  of  the  same  force  as  if  it  were 
actually  sealed.  The  impression  of  a  corporate  or  official  seal  on 
paper  or  parchment  alone,  shall  be  as  valid  as  if  made  on  wax 
or  other  adhesive  substance." 

Under  this  statute,  the  question  arises,  When  is  a  scroll  af- 
fixed "by  way  of  seal"?  As  to  writings  under  seal  for  the  pay- 
ment of  money  (i.  e.,  bonds  and  covenants  as  distinguished 
from  deeds  of  conveyance  of  land)  it  is  the  established  doctrine 
in  Virginia  that  the  scroll  is  not  affixed  by  way  of  seal  unless 
it  be  acknowledged  as  a  seal  in  the  body  of  the  instrument. 
Thus  in  the  case  of  Clegg  v.  Lemessurier,  15  Gratt.  108,  it  was 
held  that  a  writing  for  the  payment  of  money,  or  other  purpose 
for  which  a  deed  is  not  required,  though  it  has  a  scroll  at  the 
foot  thereof  with  the  word  seal  written  therein,  still  cannot  be 
considered  in  Virginia  a  sealed  instrument,  if  there*  be  no  rec- 
ognition of  the  scroll  as  a  seal  in  the  body  of  the  instrument, 
the  word  "seal"  written  in  the  scroll  not  being  in  the  body  of 
the  instrument.  This  recognition  is  usually  by  the  words  "Wit- 
ness my  hand  and  seal,"  above  the  signature,  and  thus  in  the 
body  of  the  instrument.  And  it  is  held  that,  in  the  absence 
of  these  words,  extrinsic  evidence  is  inadmissible  to  show  that 
in  fact  the  scroll  was  affixed  by  way  of  seal.  Clegg  v.  Lemes- 


NOTES  TO   CLARK  ON    CONTRACTS  5 

surier,  supra.  Thus  in  Cover  v.  Chamberlain,  83  Va.  286,  this 
instrument  was  held  not  under  seal:  "$507.  Waterford,  Va., 
Jan.  1,  1871.  One  day  after  date,  I  promise  to  pay  Samuel  A. 
Cover,  or  order,  the  sum  of  five  hundred  and  seven  dollars, 
value  received.  S.  E.  Chamberlain.  [Seal.]" 

But  if  the  words  "witness  my  hand  and  seal,"  or  similar  words 
do  occur  in  the  body  of  the  instrument,  theft  a  scroll  following 
the  signature  will  be  sufficient,  though  the  word  "seal"  is  not 
written  therein;  and  it  has  recently  been  held  in  Virginia  that 
the  word  "seal"  following  the  signature  is  also  sufficient,  though 
there  is  no  scroll  around  it.  See  Lewis  v.  Overby,  28  Gratt.  627. 
As  to  whether  in  Virginia  the  seal  of  a  corporation  may  be  a 
scroll,  if  recognized  in  the  body  of  the  instrument,  see  3  Va.  Law 
Reg.  283,  note,  where  it  is  said  that  the  question  has  not  been 
decided. 

The  above  doctrine  as  to  the  necessity  of  the  recognition  in 
the  body  of  the  instrument  of  a  scroll  used  by  way  of  seal  pre- 
vails in  four  or  five  States  besides  Virginia  (see  Clark,  53,  and 
n.  22)  ;  and  even  in  States  where  it  is  not  necessary,  it  is  usual 
to  insert  the  words  "witness  my  hand  and  seal"  above  the 
signature  to  a  sealed  instrument.  But  in  most  of  the  States  a 
scroll  may  be  used  for  a  seal  without  any  recognition  in  the 
body  of  the  instrument.  And  even  in  Virginia  an  instrument 
which  purports  to  convey  land  (which  conveyance  must  be  by 
deed)  is  considered  under  seal  if  a  scroll  be  annexed  to  the 
grantor's  signature,  and  the  instrument  be  acknowledged  by 
the  grantor  in  order  to  authenticate  it  for  recordation,  although 
the  scroll  is  not  recognized  in  the  body  of  the  instrument.  See 
Ash-well  v.  Ayres,  4  Gratt.  283.  And  the  same  doctrine  is  held 
in  West  Virginia.  See  Smith  v.  Heming,  10  W.  Va.  596. 

It  had  been  supposed  that  the  doctrine  in  Virginia  that  a  scroll 
used  by  way  of  seal  requires  recognition  in  the  body  of  the  in- 
strument (as  explained  above)  had  no  application  to  an  actual 
seal,  and  that  no  recognition  of  the  latter  was  necessary.  But 
in  the  recent  case  of  Bradley  Salt  Co.  v.  Norfolk,  etc.,  Co.,  95 
Va.  461,  it  is  held  that  an  actual  seal,  affixed  to  a  contract  for 
the  sale  of  personal  property,  must  be  recognized  in  the  body 
of  the  contract  in  order  to  make  it  a  sealed  instrument ;  and  the 
doctrine  is  laid  down  that  in  Virginia  an  actual  seal  requires 


6  NOTES   TO  CLARK  ON    CONTRACTS 

recognition  in  the  same  cases  and  in  the  same  manner  as  does 
a  scroll  used  by  way  of  (as  a  substitute  for)  an  actual  seal. 
For  criticism  on  this  decision,  see  note  by  Prof.  Lile  to  the  case 
as  reported  in  3  Va.  Law  Reg.  722.  For  discussion  of  seals  in 
Virginia,  see  1  Va.  Law  Reg.  622;  3  Id.  282,  note  by  Prof. 
Burks  to  Grubbs  v.  National  Life,  etc.,  Co.,  94  Va.  589. 

So  far  we  have  considered  the  case  where  a  scroll  is  apparent 
on  the  face  of  the  writing,  and  the  only  question  is,  whether  it 
was  affixed  thereto  "by  way  of  seal."  But  a  different  question 
is  presented  when,  though  there  is  full  recognition  of  the  instru- 
ment in  the  body  thereof  as  a  sealed  instrument  by  the  words 
"witness  my  hand  and  seal,"  or  in  the  attestation  clause  it  is 
declared  to  be  "sealed"  in  the  presence  of  the  witnesses — yet  on 
inspection  of  the  instrument  neither  wax,  wafer,  scroll,  nor  any 
mark  of  a  seal  is  found  upon  it.  Can  such  an  instrument  be 
deemed  under  seal?  In  the  recent  case  of  Reuscns  v.  Lawson, 
91  Va.  226,  the  following  language  of  Judge  Parker  in  Parks 
v.  Hewlett,  9  Leigh,  518  (taken  from  Sugden  on  Powers,  p. 
236),  is  disapproved  by  Buchanan,  J. :  "If  in  the  attestation  of 
an  instrument  it  is  stated  to  have  been  sealed  in  the  presence 
of  witnesses,  it  will,  in  the  absence  of  evidence  to  the  contrary, 
be  presumed  to  have  been  sealed,  although  no  impression  appear 
on  the  parchment  or  paper;"  the  learned  judge  declaring  (at 
p.  509),  "In  the  absence  of  other  facts,  I  do  riot  think  such  a 
paper  as  Judge  Parker  describes  could  be  held  in  this  State  to 
be  a  sealed  instrument."  But  on  the  facts  of  Reusens  v.  Lazt'- 
son,  it  was  held  that  whether  a  deed  offered  in  evidence  had 
once  been  sealed  (no  mark  of  a  seal  or  scroll  appearing  on  its 
face)  was  a  question  for  the  jury.  These  facts  were  thus  stated 
by  Buchanan,  J. : 

"If,  however,  an  original  instrument,  more  than  fifty  years 
old,  was  offered  in  evidence,  and  was  a  good  deed  in  form  and 
substance,  except  that  it  lacked  the  wax,  wafer,  scroll,  or  other 
mark  of  a  seal  upon  it,  purporting  to  convey  land,  recognized  the 
seal  in  the  body  of  the  instrument,  was  attested  by  witnesses 
who  declared  that  it  was  signed,  sealed,  and  delivered  in  their 
presence,  was  acknowledged  as  a  deed  before  the  officers  taking 
the  acknowledgment,  was  stated  by  the  clerk  (who  certified 
to  the  official  character  of  the  officers  who  took  the  acknowledg- 


NOTES  TO   CLARK  ON    CONTRACTS  7 

ment)  to  be  the  acknowledgment  of  a  deed,  was  admitted  to 
record  as  a  deed,  the  land  conveyed  by  it  at  once  transferred 
on  the  land  books  for  the  purposes  of  taxation  from  the  vendor 
to  the  vendee  (which  could  not  be  legally  done  unless  it  was 
a  conveyance  of  the  land — Chapter  183,  Sec.  30,  Rev.  Code, 
1819),  with  evidence  tending  to  show  the  payment  of  taxes 
thereon,  acts  of  ownership  exercised  over  and  possession  taken 
of  part  of  the  land,  I  think  the  question  whether  or  not  it  had 
been  properly  sealed  before  its  delivery  clearly  ought  to  be  sub- 
mitted to  a  jury.  And  if,  under  such  circumstances,  it  would  be 
proper  to  submit  the  question  to  the  jury  where  the  original 
is .  offered  in  evidence,  is  there  any  good  reason,  where  the 
original  is  lost,  and  a  copy  offered  in  evidence,  under  the  same 
circumstances,  why  the  question  of  sealing  should  not  also  be 
submitted  to  the  jury?  .  .  .  The  weight  of  authority, 
meager  as  it  is,  and  the  better  reason,  seem  to  be  in  favor  of 
allowing  such  an  instrument  to  go  to  the  jury,  for  it  to  say, 
upon  all  the  evidence  in  the  cause,  whether  or  not  the  original 
instrument  was  properly  sealed.  Whether  such  paper  was  a 
sealed  or  unsealed  instrument  was  formerly  treated  as  a  matter 
of  law,  to  be  determined  by  the  court,  but  seems  now  considered 
a  question  of  fact,  and  is  in  all  cases  submitted  to  the  jury. 
Tayl.  Ev.,  Sec.  149  (old  ed.  sec.  128),  note."  See,  also,  1  Va.' 
Law  Reg.,  p.  518,  note  by  the  editor  to  Reusens  v.  Lawson. 

It  will  be  observed  that  the  decision  in  Reusens  v.  Lawson  is 
only  to  the  effect  that  "under  such  circumstances,"  the  question 
whether  an  original  deed,  of  which  a  copy  was  offered  in  evi- 
dence, was  under  seal  should  be  submitted  to  the  jury.  It  will 
require  further  decisions  to  show  whether  the  full  array  of 
facts  as  recited  by  the  Court  is  necessary  to  send  the  question 
to  the  jury,  or  whether  some  of  them  might  be  absent  without 
changing  the  result.  See  the  language  of  Judge  Cooley  in  Stark- 
weather v.  Martin,  28  Mich.  471,  quoted  in  Reusens  v.  Lawson, 
91  Va.  249. 

4.  Can  a  deed  be  delivered  as  an  escroiv  to  the  grantee  or 
obligee  himself?  Clark,  55-6.  See  Anson  on  Contracts,  p. 
53,  where  the  doctrine  that  a  deed  cannot  be  delivered  as  an 
escrow  to  the  grantee  or  obligee  is  spoken  of  as  the  "old  rule," 


S  NOTES   TO  CLARK  ON    CONTRACTS 

with  an  intimation  that  in  England  it  is  not  only  "old"  but  ob- 
solete. But  the  old  rule  still  prevails  in  most  of  the  States  of 
the  Union,  and  is  now  the  law  in  Virginia.  Thus  in  Miller  v. 
Fletcher,  27  Gratt.  403  (21  Am.  Rep.  356),  it  is  held  that  a 
•deed,  perfect  on  its  face,  cannot  be  delivered  as  an  escrow  to 
the  grantee  himself.  But  even  in  Virginia  if  on  its  face  the 
•deed  is  not  perfect,  then  it  may  be  delivered  to  the  grantee  him- 
self as  an  escrow.  See  Wendlinger  v.  Smith,  75  Va.  309  (40 
Am.  Rep.  727).  And  though  a  bond  is  perfect  on  its  face,  it 
may,  nevertheless,  be  delivered  as  an  escrow  by  a  surety  who 
has  signed  it  to  the  principal  debtor;  for  this  is  not  a  delivery 
to  the  obligee,  the  creditor.  Nash  v.  Fugatc,  32  Gratt.  595  (34 
Am.  Rep.  780).  But  in  such  cases  the  surety  will  be  bound  if 
the  principal  debtor  delivers  the  bond  to  the  obligee,  who  has 
no  notice  of  the  unfulfilled  condition.  And  in  Humphreys  v. 
R.  Co.,  88  Va.  43,  it  is  held  that  a  deed,  though  perfect  on  its 
face,  may  be  delivered  as  an  escrow  to  an  officer  of  a  corpora- 
tion, to  take  effect  on  the  performance  of  a  condition  by  the 
corporation,  citing  Devlin  on  Deeds,  Sec.  318,  where  it  is  said 
that  there  is  no  such  personal  identity  between  a  corporation 
and  its  officers  as  will  prevent  a  delivery  to  the  latter  as  an 
escrow. 

5.  What  amounts  to  delivery  of  a  deed?     Clark,  53-4.     See 
the  great  case  of  Doe  d.  Garnons  v.  Knight,  5  B.  &  C.  671, 
where  A  having  written  a  mortgage  in  favor  of  B  (who  was  not 
present,    and   knew   nothing   of    the   mortgage   until   after   A's 
death)    brought  the  mortgage  into  the  presence  of  his    (*A's) 
niece,  and  signed  and  sealed  it,  saying:  "I  deliver  this  as  my  act 
and  deed."     Held,  this  was  delivery,  though  A  did  not  mention 
B's  name,  and  though  he    (A)   retained  the  possession  of  the 
mortgage,  never,  at  any  time,  handing  it  to  his  niece.     And  af- 
terwards A  brought  the  same  mortgage  into  the  presence  of  his 
sister  and  said:   "Take  this,  it  belongs  to  Mr.   B/'   delivering 
possession  to  the  sister.    Held,  that  this  also  amounted  to  a  legal 
delivery.     See  this  case  approved   in   Virginia  in  Skipwith  v. 
Cunningham,  8  Leigh,  271. 

6.  What  authority  must  an  agent  have  in  order  to  execute  a 
deed  in  the  name  of  his  principal?     Clark,  56,  n.  41.     The  rule 


NOTES  TO   CLARK  ON    CONTRACTS 

is  that  an  agent  to  make  a  deed  must  be  empowered  by  deed. 
"The  stream  cannot  rise  higher  than  its  source."  So  to  fill  a  ma- 
terial blank  left  in  the  deed  by  the  principal  the  agent  must  have 
sealed  authority,  for  the  filling  of  a  material  blank  is  tantamount 
to  making  a  deed.  Preston  v.  Hull,  23  Gratt.  600  (14  Am. 
Rep.  153).  Thus  in  Preston  v.  Hull,  supra,  A,  desiring  to  bor- 
row money,  and  not  knowing  who  would  lend  to  him  on  his 
bond,  drew  up  a  bond  which  he  signed  and  sealed  and  delivered 
to  his  agent  B,  the  bond  being  perfect  except  that  a  blank  was 
left  for  the  name  of  the  as  yet  unknown  obligee;  and  authorized 
B  verbally  to  write  in  as  obligee  the  name  of  any  person  who 
would  advance  the  money.  C  advanced  the  money,  and  B. 
wrote  in  C's  name,  as  obligee,  and  delivered  the  bond  to  C.  In 
an  action  by  C  v.  A  on  the  bond,  it  was  held  not  to  be  the  bond 
of  A,  because  B  was  not  empowered  under  seal.  See  on  whole 
subject,  Stahl  v.  Berger,  10  S.  &  R.  (Pa.)  170  (18  Am.  Dec. 
667-671).  And  see  Cribben  v.  Deal,  21  Oreg.  211,  denying  the 
doctrine  that  an  agent  to  make  a  deed  must  be  empowered  by 
deed. 

7.  Is  Section  4  of  the  Statute  of  Frauds  law  in  the  U.  S;? 
Clark,  64-5.  Yes,  in  all  the  States.  In  Virginia  it  has  been 
re-enacted  almost  in  the  same  words,  with  these  exceptions : 
(1)  The  doctrine  of  Wain  v.  Warlters,  5  East  10  (see  Clark, 
pp.  86,  87,  and  n.  95)  has  been  abrogated,  the  Virginia  Statute 
(Code  Virginia,  Sec.  2840)  declaring  that  the  consideration 
need  not  be  set  forth  or  expressed  in  the  writing,  and  that  it 
may  be  proved  (when  consideration  is  necessary)  by  other  evi- 
dence. (2)  For  the  fourth  promise  of  Sec.  4,  Statute  of  Frauds 
("or  upon  any  contract  or  sale  of  lands,  tenements,  or  heredita- 
ments, or  any  interest  in  or  concerning  them"),  the  Virginia 
Statute  substitutes  "upon  any  contract  for  the  sale  of  real  es- 
tate, or  for  the  lease  thereof  for  more  than  a  year,"  thus  avoid- 
ing the  troublesome  question,  what  is  an  "interest  in  or  con- 
cerning" lands.  See  Anson,  p.  (61).  The  Virginia  Statute  in- 
corporates the  provisions  of  Lord  Tenterden's  Act,  9  Geo.  4, 
c.  14,  Sec.  1  (1829),  that  no  action  shall  be  brought  "to  charge 
any  person  upon  or  by  reason  of  a  representation  or  assurance 
concerning  the  character,  conduct,  credit,  ability,  trade  or  deal- 


10  NOTES  TO   CLARK  ON   CONTRACTS 

ings  of  another,  to  the  intent  or  purpose  that  such  other  may 
obtain  thereby  credit,  money  or  goods ;  or  to  charge  any  person 
upon  a  promise  made  after  full  age  to  pay  a  debt  contracted 
during  infancy;  unless  such  promise,  representation  or  ratifi- 
cation, or  some  note  or  memorandum  thereof,  be  in  writing, 
and  signed  by  the  party  to  be  charged  thereby  or  his  agent." 
(The  English  Infants'  Relief  Act,  of  1874,  has  not  been  adopted 
in  the  United  States.  See  Anson  on  Contracts,  p.  108.)  By 
Code  Virginia,  Sec.  2922,  a  new  promise  in  writing,  or  an  ac- 
knowledgment in  writing  from  which  a  promise  to  pay  may 
be  implied,  is  required  in  order  to  remove  the  bar  of  the  Statute 
of  Limitations  as  to  money  due  on  an  award  or  by  contract. 

8.  What  is  such  a  promise  "to  answer  for  the  debt  of  an- 
other" as  is  required  to  be  in  writing  signed,  by  Sec.  4  of  the 
Statute  of  Frauds?  Clark,  66-72.  Several  requisites  must  con- 
cur :  ( 1 )  The  promise  must  be  made  to  the  creditor.  A  promise 
to  the  debtor  to  pay  his  debt  for  him  is  not  within  the  statute ; 
and  so,  if  on  valuable  consideration,  is  binding  though  made 
verbally.  (See  Eastwood  v.  Kenyan,  11  Ad.  &  E.  438.)  The 
reason  why  a  promise  to  save  another  harmless  from  the  con- 
sequences of  his  acts  (Indemnity,  Clark,  70),  does  not  require 
writing  is  that  such  promise  is  made  to  him  who  is  to  become 
liable  (the  quasi  debtor),  and  not  to  him  to  whom  the  liability 
will  be  incurred  (the  quasi  creditor).  In  the  latter  case,  writ- 
ing is  required.  (2).  The  promise  must  be  to  pay  a  debt  as 
guarantor  for  which  another  person  is  primarily  liable.  (Clark, 
67.)  Thus  in  Hendricks  v.  Robinson,  56  Miss.  694  (S.  C.  31 
Am.  Rep.  382),  the  promise  of  Dulaney  to  pay  Robinson  for 
the  goods  supplied  Hendricks,  did  not  require  to  be  in  writing 
as  Hendricks  was  never  liable  at  all,  the  credit  being  given  en- 
tirely and  solely  to  Dulaney,  though  they  were  delivered  by  his 
order  to  Hendricks.  And  the  subsequent  promise  by  Hendricks 
to  pay  for  the  goods  did  require  to  be  in  writing;  for  it  was  to 
answer  for  the  debt  of  another  (that  of  Dulaney),  and  besides 
it  was  void  for  lack  of  consideration,  the  only  consideration  be- 
ing moral,  if  indeed  there  was  even  a  moral  obligation  on  Hen- 
dricks to  pay  under  the  circumstances.  (3).  The  principal 
liability,  while  it  may  be  prospective,  must  be  real,  i.  e.,  it  must 


NOTES  TO   CLARK  ON    CONTRACTS  11 

be  incurred  at  some  time.  Thus  in  Mountstephen  v.  Lakeman 
L.  R.  7  H.  L.  17,  a  contractor  (the  plaintiff)  offered  to  make 
a  side-drain  into  the  main  sewer  for  the  defendant  if  he  or  the 
town  would  be  responsible.  The  defendant  said:  "Make  it  and 
I  will  see  you  paid."  The  town  had  never  authorized  the  con- 
struction of  the  side-drain,  and  it  refused  to  assume  the  lia- 
bility. It  was  held  that  the  defendant  was  liable,  without  writ- 
ing, as  principal  debtor,  the  words,  "I  will  see  you  paid"  impos- 
ing a  primary  liability  on  himself.  But  it  was  said  that  even  if 
the  defendant's  promise  had  been  collateral  (e.  g.,  if  the  town 
won't  pay  you,  I  will,"  etc.),  still  no  writing  would  have  been 
required.  The  town  was  never  responsible,  but  only  himself. 
So  that  his  promise  could  not  be  to  answer  for  the  debt  of  an- 
other within  the  meaning  of  the  Statute  of  Frauds.  Clark,  67. 
(4).  The  liability  of  the  original  debtor  must  continue.  Thus 
in  Goodman  v.  Chase,  1  B.  &  Aid.  297,  the  defendant  prom- 
ised the  creditor  to  pay  the  debt  if  the  creditor  would  release 
the  debtor  from  prison,  where  he  was  confined  for  the  debt 
under  a  writ  of  ca.  sa.  (now  abolished).  The  law  was  that 
such  release  of  a  debtor  operated  ipso  facto  to  discharge  the 
debtor  from  his  debt.  Thus  the  release  of  the  debtor  extin- 
guished his  debt  and  left  the  defendant  alone  liable  as  principal 
and  not  for  the  debt  of  another.  So  the  defendant  was  held 
liable  on  his  promise  without  writing.  Clark,  68. 

In  addition  to  the  above,  it  has  been  held  in  some  cases  that 
where  the  promise  to  pay  the  debt  of  another  arises  out  of  some 
new  and  original  consideration,  it  is  not  within  the  Statute  of 
Frauds.  See  Smith  on  Contracts  (7th  Ed.)  112;  Hopkins  v. 
Richardson,  9  Gratt.  494;  Wright  v.  Smith,  81  Va.  777.  For 
an  examination  of  this  doctrine,  see  Harriman  on  Contracts, 
197,  where  various  distinctions  are  suggested.  The  doctrine  is 
repudiated  in  England;  and  see  Noyes  v.  Humphries,  11  Gratt. 
636,  at  p.  645,  per  Allen,  P. 

For  the  doctrine  where  "the  leading  object  of  the  promisor 
is  not  to  become  guarantor  or  surety  for  the  debtor,  but  to  sub- 
serve some  purpose  of  his  own,"  see  Clark,  71. 

9.  When  is  an  agreement  "not  to  be  performed  within  the 
space  of  one  year  from  the  making  thereof"?  Clark,  77-82 


12  NOTES  TO  CLARK  ON   CONTRACTS 

See  Warner  v.  Texas,  etc.,  R.  Co.,  164  U.  S.  418,  where  the 
law  is  thus  laid  down  as  stated  in  the  headnote:  "The  clause 
of  the  Statute  of  Frauds  which  requires  a  memorandum  in  writ- 
ing of  'any  agreement  not  to  be  performed  within  the  space  of 
one  year  from  the  making  thereof/  applies  only  to  agreements 
which,  according  to  the  intention  of  the  parties,  as  shown  by 
the  terms  of  their  contract,  cannot  be  fully  performed  within 
a  year,  and  not  to  an  agreement  which  may  be  fully  performed 
within  the  year,  although  the  time  of  performance  is  uncertain, 
and  may  probably  extend,  and  may  have  been  expected  by  the 
parties  to  extend,  and  does  in  fact  extend,  beyond  the  year." 
Clark,  78-9  and  notes. 

The  agreement  in  Warner  v.  Texas,  etc.,  R.  Co.,  supra,  was 
that  if  Warner  would  grade  the  ground  for  a  switch,  and  put 
on  the  ties  at  a  certain  point  on  the  railroad,  the  railroad  com- 
pany would  put  down  the  rails,  and  maintain  the  switch  for 
Warner's  benefit,  for  shipping  purposes,  as  long  as  he  needed  it. 

The  court  said  (p.  434)  :  "If  within  a  year  after  the  making 
of  the  contract,  the  plaintiff  had  died,  or  had  abandoned  his 
whole  business  at  this  place,  or  for  any  other  reason  had  ceased 
to  need  the  switch  for  the  shipping  of  lumber,  the  railroad  com- 
pany would  have  been  no  longer  under  any  obligation  to  main- 
tain the  switch,  and  the  contract  would  have  been  brought  to  an 
end  by  having  been  fully  performed."  See  in  accord  Richmond, 
etc.,  R.  Co.  v.  Richmond,  etc.,  R.  Co.,  96  Va.  670. 

The  case  of  Warner  v.  Texas,  etc.,  R.  Co.  criticises,  and  vir- 
tually overrules,  the  case  of  Packet  Co.  v.  Sickles,  5  Wall.  580 
(cited  in  Clark,  79,  n.  60),  where  the  Packet  Company  agreed 
to  attach  a  patented  contrivance,  known  as  "the  Sickles  cut-off," 
to  one  of  its  steamboats,  and,  if  it  should  effect  a  saving  in  the 
consumption  of  fuel,  to  use  it  on  that  boat  "during  the  con- 
tinuance of  the  patent  [12  years],  if  the  boat  should  last  so 
long ;"  and  it  was  held  that  the  agreement  was  within  the  Statute 
of  Frauds  on  the  grounds  that  it  was  a  "contract  not  to  be  per- 
formed within  the  year,  subject  to  a  defeasance  by  the  happen- 
ing of  a  certain  event  [the  destruction  of  the  boat]  which  might 
not  occur  within  that  time."  But  in  the  Warner  Case,  the  con- 
struction of  the  language  in  the  Sickles  Case  is  declared  to  be, 
not  for  12  years,  subject  to  defeasance  on  the  destruction  of 


NOTES  TO   CLARK   ON    CONTRACTS  13 

the  boat  as  a  condition  subsequent,  but  until  the  lapse  of  12 
years,  or  until  the  destruction  of  the  boat,  whichever  shall  first 
happen,  making  a  double  limitation,  so  that  on  the  happening 
of  either  event  the  agreement  would  be  performed.  The  Court 
says :  "The  terms  'during  the  continuance  of  and  'last  so  long' 
would  seem  to  be  precisely  equivalent;  and  the  full  performance 
of  the  contract  to  be  limited  alike  by  the  life  of  the  patent  and 
the  life  of  the  boat."  It  is  added :  "It  is  difficult  to  understand. 
.  .  .  .  how  a  contract  to  use  an  aid  to  navigation  upon  a 
boat,  so  long  as  she  shall  last,  can  be  distinguished,  on  principle, 
•from  a  contract  to  support  a  man  .so  long  as  he  shall  live,  which 
has  often  been  decided,  and  is  generally  admitted,  not  to  be 
within  the  Statute  of  Frauds." 

Clark's  distinction  between  "terminated"  and  "performed" 
(see  p.  79)  can  be  better  understood  by  considering  whether 
the  contract,  terminated  or  discharged  in  both  cases,  is  termi- 
nated by  performance  or  terminated  without  performance. 
In  the  language  of  Harriman  (Contracts,  p.  202)  :  "A  distinc- 
tion should  be  drawn  between  the  case  of  a  contract  to  do  some- 
thing until  the  happening  of  a  certain  event,  which  may  happen 
within  the  year,  and  that  of  a  contract  to  continue  for  more 
than  one  year,  but  with  a  proviso  that  on  the  happening  of  a 
given  event,  the  contract  shall  be  discharged.  In  the  former 
case  there  is  a  limitation,  in  the  latter  a  condition  subsequent." 
When  there  is  a  limitation,  the  happening  of  the  event  termi- 
nates the  contract  by  performance,  so  that  the  case  is  not  within 
the  statute,  but  when  there  is  a  condition  subsequent,  the  non- 
performance  of  the  condition,  or  the  happening  of  the  event, 
terminates  (or  defeats)  the  contract  without  performance,  so 
that  if  the  contract  extends  beyond  one  year  the  possibility  of 
such  defeasance  within  one  year  will  not  take  the  case  out  of 
the  statute. 

In  the  application  of  these  principles,  there  is  a  preliminary 
question  of  construction,  in  order  to  decide  whether  the  case  in- 
volves a  limitation  or  condition.  Thus,  it  is  held  in  England 
and  some  of  our  States,  that  if  a  contract  is  by  its  terms  not  to 
be  performed  within  one  year,  the  fact  that  either  party  is  given 
an  option  to  terminate  it,  on  notice,  within  a  year,  does  not  pre- 
vent the  application  of  the  statute.  See  Dobson  v.  Collis,  1  H. 


14  NOTES  TO   CLARK  ON   CONTRACTS 

&  N.  81  (cited  with  approval  in  Warner  v.  Texas,  etc.,  R.  Co., 
164  U.  S.,  at  p.  430) ;  Birch  v.  Earl  of  Liverpool,  9  B.  &  C.  392  ; 
Meyer  v.  Roberts,  46  Ark.  80  (55  Am.  Rep.  567).  On  the 
other  hand,  it  is  laid  down  by  Clark  (p.  78)  that  "contracts 
which  may  be  terminated  at  any  time  on  notice"  are  not  within 
the  Statute  of  Frauds.  See  cases  cited  in  note  56,  and  especially 
Blake  v.  Voigt,  134  N.  Y.  69.  And  see  the  reasoning  of  the 
court  in  Blake  v.  Voigt,  where  a  contract  for  more  than  one 
year,  terminable  upon  notice,  is  treated  as  a  contract  to  continue 
until  the  time  expires,  or  until  notice — making  a  double  limita- 
tion. But  if  the  words  were  "for  three  years :  provided,  how- 
ever, that  either  party  may  terminate  upon  ten  days'  notice"- 
the  giving  of  the  notice  would  cause  a  defeasance,  by  way  of 
condition  subsequent;  whereas,  if  the  words  were  "until  the 
time  expires  or  until  notice,"  this  would  clearly  be  a  double 
limitation.  The  question,  then,  would  seem  to  depend,  as  one 
of  construction,  upon  the  language  of  the  contract. 

In  Harriman  on  Contracts,  p.  202,  the  author  says:  "Where 
the  contract  is  to  do  something  for  more  than  one  year,  but  is 
of  a  personal  character,  so  that  it  does  not  bind  the  representa- 
tives of  the  promisor,  the  question  arises  whether  such  a  con- 
tract is  within  the  statute.  On  principle,  it  seems  that  the  ques- 
tion is  really  one  of  construction;  that  if  the  life  of  the  person 
is  to  be  regarded  as  marking  the  limitation  of  the  contract,  the 
statute  does  not  apply;  but  that  if  death  is  to  be  regarded  as  a 
condition  subsequent,  putting  an  end  to  the  contract,  the  statute 
should  apply;  and  that  whether  death  is  to  be  treated  as  a  limi- 
tation or  as  a  condition,  should  depend  on  the  terms  of  the  con- 
tract, and  not  upon  any  arbitrary  rule.  If  A  promises  to  do 
something  as  long  as  he  lives,  A's  life  marks  the  natural  dura- 
tion of  the  obligation ;  and  so  if  A  promises  to  do  something 
as  long  as  B  lives,  B's  life  marks  the  duration  of  the  obligation. 
The  period  of  life  is  uncertain,  and  may  be  less  than  one  year; 
on  principle,  therefore,  the  statute  should  not  apply  to  the  cases 
just  put. 

"If,  however,  A  promises  to  do  something  for  a  period  of  five 
years,  the  contract  is  not  performed  until  the  five  years  have 
elapsed,  and  A's  death,  or  B's  death,  if  the  contract  is  personal 
in  its  character,  operates  simply  as  a  condition  discharging  the 


NOTES  TO   CLARK   ON    CONTRACTS  15 

contract;  unless  the  contract  be  of  such  a  character  that  it  may 
properly  be  construed  as  extending  only  during  the  life  of  A 
or  B.  Thus  an  agreement  by  A  to  work  for  B  for  five  years  is 
within  the  statute  [see  Lee  v.  Hill,  87  Va.  497],  though  death 
will  discharge  it;  but  an  agreement  by  A  to  support  B  for  five 
years,  or  to  refrain  from  doing  something  for  five  years,  is  not 
within  the  statute."  See  Macgregor  v.  Macgregor,  21  Q.  B.  D, 
424;  Doyle  v.  Dlxon,  97  Mass.  208;  Seddon  v.  Rosenbaum,  85 
Va.  928;  Thomas  v.  Armstrong,  86  Va.  323.  And  see  on  whole 
subject,  1  Va.  Law  Reg.  553,  article  by  Edmund  H.  Bennett. 

10.  Is  Section   17,  Statute  of  Frauds,  in  force  in   Virginia? 
Clark,  97.     No,  it  has  never  been  in  force  in  Virginia,  nor    in 
West    Virginia,    Delaware,    Illinois,    Kentucky,    Ohio,    Pennsyl- 
vania, Rhode  Island,  or  Tennessee ;  and   sales  in  these  States 
are  proved  as  at  common  law.     For  what  constitutes  at  common 
law  an  executed  sale    whereby  title    passes    to  the   buyer,   see 
Chapman  v.  Campbell,  13  Gratt.    105.      Where    the    chattel  is 
specific,  and  nothing  remains  to  be  done  to  put  it  into  a  de- 
liverable shape,  the  title  may  pass  to  the  buyer,  as  by  an  executed 
sale,  by  virtue  of  an  offer  and  acceptance,  of  a  certain  thing  at 
a  certain  price,  though  there  has  been  no  tender  or  delivery  of 
the  chattel  by  the  seller,  and  no  tender  or  payment  of  the  price 
by  the  buyer.     See  Graves,  "Summary  of   Personal   Property," 
§  46. 

11.  What  is  consideration  sufficient  to  support  a  promise? 
Clark,    106-110.      Langdell    (Summary  of   Contracts,'  Sec.   45) 
says :   "The  consideration   for  a  promise  is  the  thing  given  or 
done  by  the  promisee  in  exchange   for  the  promise."     It  may 
also  be  defined  as  "Any  detriment  to  the  plaintiff  incurred  at 
the  instance  of  the  defendant,  and  on  the  faith  of  the  defend- 
ant's promise."     Such  consideration  must  move,   in  the  nature 
of  the  case,  from  the  plaintiff  (for  why  should  A  sue  B  because 
C  has  conferred  a  benefit  on  B,  or  suffered  detriment  at  B's 
instance?);  but  it  need  not  necessarily  move  to  the  defendant. 
Of  course,  if  A  confers  a  benefit  on  B  this  is  both  benefit  to  B 
and  detriment  to  A   (in  parting  with  something  of  value)  ;  but 
A  may  suffer  detriment  at  B's  instance  without  benefiting  B, 
as  where  at  B's  request,  and  on  B's  guaranty,  A  supplies  goods 


16  NOTES  TO  CLARK  ON    CONTRACTS 

to  C.  Here  to  part  with  goods  on  credit  is  a  detriment  to  A, 
but  C  receives  the  goods,  and  B  may  not  be  at  all  benefited  un- 
less it  is  by  the  satisfaction  of  having  done  a  kindness  to  C. 
See  Langdell,  Section  64. 

12.  Wliat  constitutes  a  detriment  to  the  plaintiff   (the  prom- 
isee)? Clark,  107,  114,  121.  It  is  not  necessary  that  the  promisee 
should   suffer   any    actual    injury   in  order    to  constitute   such 
"detriment"  as  amounts  to  a  legal  consideration.     It  is  enough 
that,  in  exchange  for  the  promise  of  the  promisor,  the  promisee 
has  forborne  to  exercise  any  legal  right,  though  its  non-exercise 
may  be  rather  beneficial  to  the  promisee  than  injurious.     The 
detriment  consists  in  the  restraint  imposed  on  liberty  of  action 
and  freedom  of  will. 

Thus  in  Earner  v.  Sidway,  124  N.  Y.  53  (21  Am.  St.  Rep. 
693),  an  uncle  promised  his  nephew  that  if  the  latter  would 
refrain  from  drinking  liquor,  using  tobacco,  swearing,  and  play- 
ing cards  or  billiards  for  money,  until  he  should  become  twenty- 
one  years  of  age,  he,  the  uncle,  would  pay  him  $5,000;  it  was 
held  that  the  promise  was  founded  on  sufficient  consideration, 
and  was  therefore  enforceable. 

13.  Example  of  consideration  consisting  in  something  done  by 
the  promisee  in  exchange  for  the  promise  (promise  for  an  act). 
Clark,    13-14,    38-40.      In   Carlill   v.    Carbolic   Smoke   Ball    Co. 
(1893),  1  Q.  B.  (C.  A.)  269,  the  Smoke  Ball  Co.  advertised  to 
pay  £100  to  any   one   "who  contracts  the   increasing  epidemic 
influenza  colds,  or  any  disease  caused  by  taking  cold,  after  hav- 
ing used  the  ball  three  times  daily  for  two  weeks,  according  to 
the  printed  directions."    It  was  added  that  £1,000  was  deposited 
in  the  Alliance   Bank,   "showing  our  sincerity  in  the  matter." 
The  plaintiff  used  the  smoke  ball  as  required  by  the  directions; 
and  having  afterwards   contracted  the  influenza,   she   sued  the 
Smoke  Ball  Co.  for  the  £100,  and  was  held  entitled  to  recover. 
See  Anson  on  Contracts  (8th  ed.),  45. 

14.  //,  on  agreement  zvith  the  creditor  to  receive  fifty  dollars 
in  full  satisfaction  of  a  debt  of  one  hundred  dollars,  the  debtor 
pays  the  fifty  dollars,  is  the  debt  of  one  hundred  dollars  thereby 
discharged?    Clark,  129-130. 


NOTES  TO   CLARK   ON    CONTRACTS  17 

No,  it  is  not  discharged,  at  common  law,  for  lack  of  consid- 
eration. See  Clark,  491-2,  et  seq.  And  see  in  accord  Seymour 
v.  Goodrich,  80  Va.  303.  The  doctrine  is  now  changed  in  Vir- 
ginia by  statute  taking  effect  May  1,  1888,  by  which  it  is  enacted 
(Code,  Sec.  2858)  :  "Part  performance  of  an  obligation,  promise, 
or  undertaking,  either  before  or  after  breach  thereof,  when  ex- 
pressly accepted  by  the  creditor  in  satisfaction,  and  rendered  in 
pursuance  of  an  agreement  for  that  purpose,  though  without 
any  new  consideration,  shall  extinguish  such  obligation,  promise 
or  undertaking." 


15.  What  is  ''executed"  consideration?  •  Clark,  136-7.  Ac- 
cording to  Anson  the  consideration  of  a  contract  may  be  ex- 
ecutory or  executed,  but  it  cannot  be  past.  So  Anson  distin- 
guishes between  an  executed  and  a  past  consideration,  and  de- 
nies that  the  latter  is  sufficient  to ,  support  a  contract.  See 
Anson,  p.  (13),  note  a,  where  it  is  said:  "Executed  considera- 
tion as  opposed  to  executory  means  present  as  opposed  to  fu- 
ture, an  act  as  opposed  to  a  promise."  Under  this  head  he 
places  a  contract  where  there  is  the  offer  of  an  act  for  a 
promise  (completed  by  the  acceptance  of  the  executed  con- 
sideration), and  where  there  is  a  promise  for  an  act  (consid- 
eration executed  on  request).  See  p.  (90).  Under  this  head 
would  come  Smith's  case  "when  the  consideration  consists  in 
something  the  benefit  of  which  the  person  promising  has  adopted 
and  enjoyed" — where  Smith  says  the  law  implies  both  request 
and  promise.  (Smith  on  Contracts,  189.)  But  Smith's  case 
"where  the  consideration  consists  in  the  person  to  whom  the 
promise  is  made  being  compelled  to  do  that  which  the  person 
making  it  ought  to  have  done,  and  was  compellable  to  do," 
when  also  Smith  says  both  promise  and  request  are  implied, 
Anson  places  under  the  head  of  quasi  contracts,  as  not  being 
real  contract  at  all.  See  Anson,  p.  (366).  This  leaves  of 
Smith's  summary  the  case  "where  the  consideration  consists  in 
the  person  to  whom  the  promise  is  made  having  voluntarily 
done  that  which  the  person  promising  ought  to  have  done,  and 
was  legally  compellable  to  do,"  where  the  request  will  be  im- 
plied if  the  promise  be  express;  this  Anson  rejects  as  without 
any  real  consideration  (p.  97).  He  also  rejects  the  general 


18  NOTES  TO   CLARK  ON   CONTRACTS 

doctrine  that  a  past  consideration  will  in  all  cases  support  an 
express  promise  if  the  consideration  was  moved  by  a  previous 
actual  request,  and  pronounces  it  unsound  except  in  those  cases 
where  "the  request  is  virtually  the  offer  of  a  promise  the  precise 
extent  of  which  is  hereafter  to  be  ascertained,  or  is  so  clearly 
made  in  contemplation  of  a  promise  to  be  given  by  the  maker 
of  the  request  that  a  subsequent  promise  may  be  regarded  as 
part  of  the  same  transaction."  (See  p.  97.)  For  Clark's  dis- 
cussion, see  136-142. 

16.  Is  moral  obligation  sufficient  to  support  a  promise?    Clark, 
108-9.     No,  it  has  been  declared  to  be  "nothing  in  law."     See 
Eastwood  v.  Kenyan,  11  A.  &  E.  446,  cited  in  Clark,  109.     In 
this  case,  the  husband  was  sued  as  sole  defendant  by  reason 
of  his  express  promise,  and  because  he  had  received  the  benefit 
of  the  plaintiff's  expenditures  on  his  wife's   real  estate.     But 
the  plaintiff's  expenditures  were  not  made  at  the  wife's  nor  at 
the  husband's  previous  request;  the  case  therefore  did  not  come 
within  the  doctrine  of  Lampleigh  v.  Braithivait,  Clark,  138,  and 
the  promise  was  therefore  unenforceable.   If  there  had  been  con- 
sideration, however,  the  promise  would  have  been  enforceable 
without  writing  signed  by  the  defendant;  for  the  promise  was 
made  to  the  debtor  to  pay  his  debt  incurred  by  him  for  the  ex- 
penditures, and  so  was  not  within  the  Statute  of  Frauds.    East- 
wood v.  Kenyan  is  the  leading  authority  for  the  doctrine  that  a 
promise  to  a  debtor  to  pay  his  debt  is  binding  without  writing 
if   only  there  be   sufficient   consideration ;   but   in   Eastivood  v. 
Kenyan  there  was  no  consideration.     See  8,   (1),  supra. 

17.  Does  Anson  admit  any   exceptions   to   the   doctrine   laid 
doivn  by  him   (p.  89),  that  consideration  may  be  executory  or 
executed,  but  it  cannot  be  past?    Clark,  138-142.     Yes,  on  page 
(100)  he  recognizes  and  approves  the  doctrine  that  the  follow- 
ing promises  require  no  new  consideration:    (1).     Promise  by 
an  infant  after  full  age  to  pay  a  debt  contracted  during  infancy, 
not  for  necessaries;  (2).     Promise  by  a  bankrupt  to  pay  a  debt 
from  which  he  has  been  released  by  a  discharge  in  bankruptcy ; 
(3).     Promise  by  a  debtor  to  pay  a  debt  barred  by  the  Statute 
of  Limitation;  (4).  Promise  by  a  widow  to  pay  a  bond  given 
by  her  when  a  married  woman  and  therefore  under  the  disa- 


NOTES  TO   CLARK  ON    CONTRACTS  19 

bility  of  coverture.  Anson's  reasons  for  approving  these  ex- 
ceptions to  the  general  doctrine  that  a  past  consideration  will 
not  support  a  promise,  may  be  seen  at  pp.  (100),  (101). 

The  doctrine  is  thus  laid  down  in  Eastwood  v.  Kenyan,  supra : 
"An  express  promise  can  only  revive  a  precedent  good  consid- 
eration, which  might  have  been  enforced  at  law  through  the 
medium  of  an  implied  promise  [or  on  the  original  express 
promise]  had  it  not  been  suspended  by  some  positive  rule  of 
law;  but  can  give  no  original  came  of  action,  if  the  obligation 
on  which  it  is  founded  never  could  have  been  enforced  at  law, 
though  not  barred  by  any  legal  maxim  or  statute  provision." 
To  illustrate.  In  Hendricks  v.  Robinson,  56  Miss.  694  (31  Am. 
Rep.  382),  whose  facts  have  been  given  under  8,  (2),  supra, 
the  promise  of  Hendricks  to  pay  for  the  goods  was  never  en- 
forceable at  law,  for  the  goods  were  not  sold  to  him,  and  his 
promise  was  utterly  without  consideration.  But  in  the  case  of 
infants,  bankrupts,  and  debtors  whose  debts  are  noiv  barred  by 
the  Statute  of  Limitation,  there  was  originally  a  binding  contract 
on  sufficient  consideration,  a  contract  which  at  the  time  of  the 
subsequent  promise  would  still  be  enforceable  but  for  the  posi- 
tive rule  of  law,  which,  by  "legal  maxim"  of  the  common  law 
in  the  case  of  infants,  and  by  "statute  provisions"  in  the  cases 
of  bankrupts  and  debts  barred  by  lapse  of  time,  denies  liability. 
Anson  says  (p.  100)  that  "where  the  consideration  was  origi- 
nally beneficial  to  the  party  promising,  yet  if  he  be  protected 
from  liability  by  some  provision  of  the  statute  or  common  law 
meant  for  his  advantage,  he  may  renounce  the  benefit  of  that 
law."  This  statement  by  Anson  is  broad  enough  to  embrace 
the  case  of  Lee  v.  Muggeridge,  5  Taunton  1^6  (see  Anson,  p. 
100)  ;  although  the  married  woman's  bond  could  never  have 
been  enforced  against  her  (the  bond  of  the  married  woman  at 
common  law  being  absolutely  void,  not  voidable  as  in  the  case 
of  an  infant)  ;  and  her  promise,  therefore,  after  she  became  a 
widow,  did  not  merely  revive  precedent  liability  suspended  by 
a  positive  rule  of  law,  but  created  an  original  liability  which 
had  no  antecedent  existence.  Qn  this  ground,  the  case  of  Lee 
v.  Muggeridge,  though  not  overruled  in  England,  has  been  ques- 
tioned there,  and  has  been  disapproved  of  in  a  number  of  Ameri- 
can cases.  See  Anson  (p.  100),  note  1;  Smith  on  Contracts  (p. 


20  NOTES   TO  CLARK  ON   CONTRACTS 

189),  note  1  at  end.  And  see  especially  the  opinions  in  Gould- 
ing  v.  Davidson,  26  N.  Y.  604,  where,  however,  the  doctrine  of 
Lee  v.  Mwggeridge  was  followed  by  the  court.  For  Clark's 
discussion,  see  pp.  138-142.  As  to  Lee  v.  Muggeridge,  see 
Clark,  137,  n.  145;  141,  n.  165. 

18.  Is  an  infant's  contract  valid,  void,  or  voidable?  See 
Clark,  149-154.  In  1  Am.  Leading  Cas.,  p.  280,  in  valuable 
note  to  Tucker  v.  Morcland,  10  Peters  58,  it  is  said:  "The 
numerous  decisions  in  this  country  justify  the  settlement  of 
the  following  definite  rule  that  is  subject  to  no  exception:  (1) 
The  only  contract  binding  on  an  infant  [i.  e.  valid]  is  the  im- 
plied contract  for  necessaries;  (2)-  the  only  act  which  he  is 
under  a  legal  incapacity  to  perform  [i.  e.  void]  is  the  appoint- 
ment of  an  attorney  or  other  agent;  (3)  all  other  acts  or  con- 
tracts, executed  or  executory,  are  voidable  or  affirmable  by  him 
after  full  age  at  his  election  [i.  e.  voidable]."  This  rule  is 
quoted  with  approval  in  Mustard  v.  Wohlford,  15  Gratt.  337. 

In  the  recent  case  of  Dellinger  v.  Foltz,  93  Va.  729,  the  court 
adopts  the  doctrine  stated  above  that  the  appointment  of  an 
attorney  or  other  agent  by  an  infant  is  not  merely  voidable  but 
void.  It  is  there  said,  by  way  of  dictum,  however,  that  it  is 
"well  settled  that  an  infant  cannot  empower  an  agent  or  at- 
torney to  act  for  him,  and  that  such  appointment  would  be  void. 
Nor  can  he  affirm  what  one  has  assumed  to  do  for  him,  for  he 
cannot  ratify  what  he  could  not  authorize."  But  the  soundness 
of  this  doctrine  has  been  denied  in  some  cases,  and  on  principle 
it  would  seem  that  there  should  be  only  two  classes  of  contracts 
by  infants,  viz.:  (1)  those  which  are  valid,  (2)  those  which 
are  voidable;  thus  enabling  him  to  affirm  the  latter  class,  if 
after  full  age  he  should  deem  them  beneficial.  For  discussion, 
see  monographic  note  to  Craig  v.  Van  Bebbcr  (Mo.),  18  Am. 
St.  Rep.  574;  and  especially  3  Va.  Law  Reg.  610,  note  by  Prof. 
Lile,  citing  late  case  of  Coursolle  v.  Weyerliauser  (Minn.),  72 
N.  W.  697,  holding  that  a  power  of  attorney  by  an  infant  to 
convey  his  land  was  voidable  and  not  void,  and  so  capable  of 
ratification  by  him  after  full  age. 

Under  the  head  of  valid  contracts,  Clark  (pp.  151-2)  adds 
to  the  implied  contract  for  necessaries,  the  following  as  binding 
upon  an  infant. 


NOTES  TO   CLARK  ON    CONTRACTS  21 

(a)  Quasi  contracts — created  by  law. 

(b)  Contracts  under  authority  of  statute — authorised  by  law. 

(c)  Contracts  to  do  what  infant  is  legally  bound  to  do — com- 
pellable  by  law. 

(d)  Executed  contract  where  other  party  cannot  be  put  in 
statu  quo — some  jurisdictions — conflict. 

19.  What  are  the  consequences  of  the  avoidance  by  an  infant 
of  his  contract?  Clark,  171-174.  For  clearness  of  view,  con- 
sider these  four  cases: 

1.  When  infant  sells  his  property  on  credit,  and  receives  the 
adult's  note   for  the  price,  or  other  promise  to  pay.     Then  if 
the  infant  avoids  the  contract,  the  action  is  by  /.  v.  A.  to  re- 
cover I.'s  property.     I.  can  recover,  of  course,  for  the  sale  is 
voidable  by  infant,  and  as  he  has  received  nothing  from  A., 
there  is  no  question  of   restitution  by   I.,   unless  it  be  to   sur- 
render A.'s  note  for  the  price. 

2.  When    infant   sells   property   to    adult    for   cash,    and    re- 
ceives the  purchase  money.     Action  by  /.  v.  A.  to  recover  his 
property.     I.  can  recover,  of  course,  on  the  return  of  the  pur- 
chase money;   for  the  contract  is  voidable  by  the  infant.     But 
suppose  during  infancy  I.  has  squandered  purchase  money,  can 
he   still   recover   his   property,   making  no   restitution   to   adult? 
The   better   opinion   is   that   I.   can   recover   ivithout   restitution. 
For  otherwise  the  policy  of  the  law  as  to  the  incompetency  of 
infants  to  bind  themselves  by  a  sale  of  their  property  would  be 
frustrated.    For  if  the  infant  could  not  recover  his  property  with- 
out returning  purchase   money  squandered  during  infancy,   the 
right  to  avoid  would  be  futile;  for  the  infant  would  be  obliged 
to  mortgage  his  property  to  its  value,  or  sell  it  when  recov- 
ered, in  order  to  repay  the  purchase  money  to  him  who  bought 
from  infant  during  infancy. 

3.  When  infant  buys  property  from  adult  on  credit  and  gives 
adult  note  for  the  price.    It  is  here  supposed  that  the  contract  is 
not  for  necessaries,  for  otherwise  the  infant  would  be  bound  on 
his  implied  contract  to  pay   what  the  necessaries   were  worth 
(quantum  valebant}.     But  when  the  purchase  is  not  of  neces- 
saries, if  action  be  brought  by  A.  v.  I.,  on  note  after  infant  has 
reached  full  age,  I.  can  plead  infancy,  and  thus  avoid  paying  for 


22  NOTES   TO   CLARK   ON  CONTRACTS 

the  property,  unless  I.  has,  after  full  age,  signed  a  written 
promise  to  pay  the  debt,  or  ratified  his  promise  in  writing,  as 
there  is  no  "Infants'  Relief  Act"  in  the  United  States.  But  if 
infant  still  has  property  and  would  avoid  his  liability  to  pay  for 
it,  he  must  return  it  to  adult;  for  it  is  a  settled  rule  that  an  in- 
fant cannot  be  permitted  to  retain  property  purchased  by  him, 
and  still  in  his  possession,  and  at  the  same  time  repudiate  the 
contract  on  which  he  received  it.  But  where  the  property  can- 
not be  returned  because  wasted  or  consumed  by  the  infant  dur- 
ing infancy,  then  the  right  of  the  infant  is  settled  to  plead  in- 
fancy, and  avoid  payment,  leaving  the  seller  to  bear  the  loss. 
This  is  the  ordinary  case  where  a  foolish  tradesman  sells  an  in- 
fant goods  not  necessaries  on  credit,  and  has  nothing  to  rely  on 
but  the  honor  of  the  infant.  '. 

4.  Where  the  infant  buys  property  (not  necessaries)  from 
adult,  and  pays  cash  for  it.  It  will  be  seen  that  the  adult  has 
nothing  to  ask;  he  cannot  avoid;  he  has  received  payment,  and 
has  nothing  to  sue  for.  But  the  action  is  by  /.  v.  A.  to  recover 
back  his  money.  Certainly  I.  can  do  so,  if  he  can  return  the 
property;  for  the  contract  is  voidable.  But  suppose  the  infant 
has  not  the  property,  can  he  recover  his  purchase  money  without 
placing  the  adult  in  statu  quo?  Upon  this  point  the  cases  are 
in  conflict,  the  weight  of  modern  authority,  at  least  in  the  United 
States,  favoring  the  absolute  right  of  the  infant  to  recover  his 
money,  with  restitution  to  adult  when  practicable,  and  without 
it  when  it  is  not.  See  Clark,  173-4,  Lemmon  v.  Beeman,  45 
Ohio  St.  505;  Morse  v.  Ely,  154  Mass.  458;  note  to  Craig  v. 
Van  Bcbber,  18  Am.  St.  Rep.  574. 

It  is  believed,  however,  that  the  better  view  is,  in  accordance 
with  the  English  decisions,  and  some  of  the  American,  that 
unless  the  infant  can  return  the  property  he  cannot  recover  the 
purchase  money.  See  cases  cited  by  Clark,  p.  174,  n.  151,  and 
especially  Adams  v.  Beall,  67  Md.  53  (1  Am.  St.  Rep.  379). 
Usually  the  infant  cannot  return  the  property;  so  that  if  this 
view  be  correct,  the  wise  tradesman  who  sells  to  an  infant  for 
cash,  need  have  little  fear  of  avoidance;  and  if  it  comes,  it  is 
coupled  with  restitution  which  robs  it  of  its  terrors. 

Compare  these  two  cases. 

1.     Infant  sells  property,  and  receives  money. 


NOTES  TO   CLARK  ON    CONTRACTS  23 

2.     Infant   buys  property,   and  pays  money. 

In  each  case,  the  contract  is  executed  on  both  sides.  But 
under  (1)  the  infant  can  recover  back  his  property,  and  this 
without  restitution,  unless  the  purchase  money  remains  in  his 
possession;  whereas  under  (2)  unless  infant  can  return  prop- 
erty, the  better  opinion  is  that  he  cannot  recover  money. 

The  distinction  is  thus  explained  by  Prof.  J.  Randolph 
Tucker:  When  infant  sells  his  property,  the  buyer  takes  a  de- 
feasible title,  and  nothing  can  prevent  infant's  right  to  recover; 
when  infant  buys  property,  it  is  money  he  seeks  to  recover,  and 
he  cannot  recover  it  except  in  assumpsit,  not  as  property,  but  as 
money.  But  unless  the  infant  retain  the  property  bought,  and 
tender  a  return,  there  is  nothing  to  raise  an  assumpsit.  It  in- 
volves no  question  of  defeasible  title,  but  of  obligation  to  repay, 
and  such  obligation  will  not  be  implied,  even  for  the  infant, 
unless  ex  <zquo  et  bono  the  adult  should  not  retain  the  money 
paid,  as  in  case  of  fraud,  where  infant  has  given  his  money  for 
nothing.  But  under  (1),  though  what  the  infant  retains  the 
law  raises  a  duty  against  him  to  return,  when  he  repudiates  the 
sale,  and  reclaims  his  property,  yet  the  law  will  not  raise  an  as- 
sumpsit against  him  to  return  the  purchase  money  which  he  re- 
ceived as  infant,  if  he  has  wasted  it  during  infancy  on  account 
of  the  very  incompetency  which  the  law  attributes  to  him. 

20.  How  may  an  infant  ratify  his  voidable  contract  in  Vir- 
ginia? Clark,  166-9.  By  C.  V.  2840:  "No  action  shall  be  brought 
.  .  .  to  charge  any  person  upon  a  promise  made,  after  full 
age,  to  pay  a  debt  contracted  during  infancy,  or  upon  a  ratifi- 
cation, after  full  age,  of  a  promise  or  simple  contract  made  dur- 
ing infancy,  .  .  .  unless  the  promise  ...  or  ratification,  or 
some  memorandum  or  note  thereof,  be  in  writing,  and  signed 
by  the  party  to  be  charged  thereby,  or  his  agent." 

For  discussion  of  the  construction  of  this  rather  crabbed 
statute,  see  5  Va.  Law  Reg.  267,  note  by  Prof.  Lile.  His  con- 
clusions are  as  follows : 

1.  A  new  express  promise,  after  full  age,  to  pay  a  debt  con- 
tracted during  infancy,  must  be  in  writing.  Ward  v.  Scherer,  96 
Va.  318  (31  S.  E.  518). 


24  NOTES  TO  CLARK  ON    CONTRACTS 

2.  A  new  express  promise,  after  full  age,  to  perform  a  con- 
tract made  during  infancy  not  in  the  nature  of  a  debt  [e.  g.  a 
contract  to  do  a  collateral  thing  such  as  to  sell  goods  or  perform 
services],  need  not  be  in  writing. 

3.  An  implied  promise  [i.  e.  language  from  which  a  promise 
may  be  implied],  after  full  age,  to  perform  any  contract  made 
during  infancy,  must  be  in  writing. 

4.  Any  conduct  after  full  age  (other  than  by  words)  indicat- 
ing an  unequivocal  intention  on  the  part  of  the  infant  to  ratify  a 
contract  made  during  infancy,  subsequent  repudiation  of  which 
would  operate  as  a  fraud  upon  the  other  contracting  party,  will 
amount  to  a  ratification  without  a  writing. 

5.  When  the  infant,  after  age,  becomes  plaintiff  to  recover  the 
consideration  paid  on  a  contract  made  during  infancy,  a  ratifica- 
tion may  be  shown  as  at  common  law.     The  statute  applies  only 
where  the  infant  is  the  "party  to  be  charged" — that  is,  the  de- 
fendant.    Hilton  v.  Shepherd  (Me.),  42  Atl.  387. 

The  mode  of  ratification  of  an  infant's  contract  prescribed  by 
the  Virginia  statute  is  substantially  the  same  as  that  required  in 
England  by  Lord  Tenterden's  Act,  9  Geo.  IV.  c.  14  (1829). 
This  act  has  now  been  repealed  (Statute  Law  Revised  Act, 
1875),  having  been  rendered  unnecessary  by  the  Infants'  Re- 
lief Act  of  1874 — to  which  reference  has  already  been  made. 
This  act,  says  Anson,  "appears  to  have  been  designed  not  merely 
against  the  results  of  youthful  inexperience,  but  against  the 
consequences  of  honorable  scruples  as  to  the  disclaimer  of  con- 
tracts upon  the  attainment  of  majority."  Its  provisions  are  as 
follows  (8th  ed.,  234)  : 

1.  "All  contracts,  whether  by  specialty  or  by  simple  contract, 
henceforth  entered  into  by  infants  for  the  repayment  of  money 
lent  or  to  be  lent,  or  for  goods  supplied  or  to  be  supplied  (other 
than   contracts    for  necessaries),   and   all  accounts   stated  with 
infants,  shall  be  absolutely  void;  provided  always  that  this  en- 
actment shall  not  invalidate  any  contract  into  which  an  infant 
may,  by  any  existing  or  future  statute,  or  by  the  rules  of  the 
common  law  or  equity,  enter,  except  such  as  now  by  law  are 
voidable." 

2.  "No  action  shall  be  brought  whereby  to  charge  any  person 


NOTES  TO   CLARK   ON    CONTRACTS  25 

upon  any  promise  made  after  full  age  to  pay  any  debt  contracted 
during  infancy,  or  upon  any  ratification  made  after  full  age  of 
any  promise  or  contract  made  during  infancy,  whether  there 
shall  or  shall  not  be  any  new  consideration  for  such  promise  or 
ratification  after  full  age." 

No  such  legislation  as  the  above  has  been  adopted  in  the 
United  States,  and  adults  may  ratify  their  voidable  contracts 
made  during  infancy;  but  by  the  weight  of  authority,  such  rati- 
fication is  not  binding  if  it  was  made  in  ignorance  of  the  legal 
right  to  repudiate  the  contract.  See  4  Va.  Law  Reg.  623,  note 
by  Prof.  Lile,  commenting  on  Bestor  v.  Hickey  (Conn.),  41  Atl. 
555,  where  the  contrary  was  held.  As  to  an  infant's  liability 
for  fraudulent  representation  as  to  age,  see  2  Va.  Law  Reg.  466, 
note  by  Prof.  Lile;  also  Ibid,  p.  724,  article  by  Mr.  David  H. 
Leake. 

21.  What  is  mistake  as  to  the  nature  of  the  transaction?  See 
Clark,  196-8,  citing  the  great  case  of  Foster  v.  Mackinnon,  L. 
R.  4  C.  P.  704,  where  a  man  signed  an  endorsement  of  a  bill 
of  exchange  under  the  impression  that  it  was  only  a  common  law 
guaranty.  Here  there  was  no  intention  at  all  to  sign  an  en- 
dorsement. The  same  doctrine  is  applicable  to  cases  of  fraud, 
as  where  a  man  is  asked  for  his  autograph,  and  by  a  trick  his 
name  is  obtained  to  a  deed  or  other  contract.  In  this  case  the 
u'ill  does  not  go  with  the  deed,  the  fraud  is  said  to  be  in  the 
factutn,  and  if  the  party  deceived  is  sued  on  the  deed  he  can 
plead  non  cst  factum,  i.  e.,  not  his  deed.  But  fraud  in  the  fac- 
tum  must  be  distinguished  from  fraud  in  the  inducement,  where 
the  signer  intends  to  sign  what  he  does  sign,  but  is  led  to  do 
so  by  false  statements ;  where  the  will  goes  with  the  deed, 
but  is  led  so  to  do  by  deceitful  inducements.  In  this  class  of 
cases  the  contract  or  deed  is  not  void  but  voidable  only.  (See 
Clark,  238-9).  The  consequence  is  that  if  A  sells  property  to 
B,  meaning  so  to  do,  but  relying  on  B's  false  statements  as  the 
inducement  to  the  sale,  B,  nevertheless,  by  the  act  and  will  of 
A,  gets  the  legal  title  to  the  property,  which  remains  in  B  until 
avoidance  of  the  sale  by  A.  If  in  the  meantime,  i.  e.,  before 
avoidance  by  A,  B  sells  the  property  to  C,  for  value  and  without 
notice  of  B's  fraud,  C  gets  a  good  title  as  against  A,  who  must 


26  NOTES  TO  CLARK  ON    CONTRACTS 

look  to  B  alone  for  damages.  For  B  has  title  to  the  property, 
and  since  C  receives  it  from  B,  C  is  secure  both  at  law  and  in 
equity;  for  what  can  be  alleged  against  the  holder  of  the  legal 
title,  who  receives  it  with  clean  hands,  and  for  valuable  consider- 
ation ? 

Thus  in  Moyce  v.  Newington,  4  Q.  B.  D.  32,  B  purchased  and 
obtained  delivery  of  certain  sheep  from  A  by  giving  A  a  fictitious 
check.  Before  A  had  done  anything  to  avoid  the  contract  with 
B,  B  sold  the  sheep  to  C,  who  bought  them  bona  fide  and  for 
value.  It  was  held  that  A  was  not  entitled  to  take  away  the 
sheep  from  C  (as  A  had  done),  but  was  liable  to  an  action  by 
C  for  so  doing.  Here  B  had  gotten  title  from  A,  and  so  C  had 
gotten  title  from  B.  But  contrast  Moyce  v.  Ncivington  with 
Cundy  v.  Lindsay,  3  App.  Cas.  459,  where  a  sharper  named 
Blenkarn  took  a  room  at  No.  37  Wood  St.,  London,  on  which 
street,  at  No.  123,  there  was  the  respectable  firm  of  Blenk/ron 
&  Sons.  Blenkarn  then  ordered  250  dozen  cambric  handkerchiefs 
from  Lindsay  &  Co.,  of  Belfast,  who  supplied  the  handkerchiefs 
under  the  impression  that  they  were  selling  to  Blenkiron  & 
Sons,  Blenkarn  having,  with  fraudulent  purpose,  so  written 
"Blenkarn  &  Co."  as  to  make  it  look  like  "Blenkiron  &  Co." 
(that  concern  being  known  to  Lindsay  &  Co.).  Blenkarn  sold 
the  handkerchiefs  to  Cundy,  who  bought  for  value,  without  no- 
tice of  the  fraud.  In  an  action  by  Lindsay  against  Cundy,  it 
was  held  that  no  title  had  ever  passed  to  Blenkarn,  who,  there- 
fore, could  give  none  to  Cundy.  Hence  Lindsay  &  Co.  were 
entitled  to  recover  the  handkerchiefs.  Lindsay  &  Co.  never 
meant  to  sell  them  to.  Blenkarn,  and  Blenkiron  &  Sons,  to  whom 
they  did  mean  to  sell,  never  meant  to  buy  them;  hence  there 
had  never  been  a  sale  at  all. 

22.  Is  a  mistake  as  to  the  existence  of  a  right  a  mistake  of  laic, 
and  so  ic.'ithout  remedy?  See  Clark,  206,  n.  44,  citing  Cooper  v. 
Phibbs,  L.  R.  2  H.  L.  170.  The  true  doctrine  is,  as  stated  by 
Lord  Westbury,  that  a  "private  right  of  ownership  is  a  matter 
of  fact  (though)  it  may  be  the  result  also  of  matter  of  law." 
On  the  difficult  question,  "What  mistakes  are,  and  what  are  not, 
ground  for  relief?"  Prof.  Pomeroy  (2  Pom.  Equity,  Sees.  843- 
'49)  offers  the  following  rules : 


NOTES  TO   CLARK   ON    CONTRACTS  27 

Rule  I.  When  the  parties  with  knowledge  of  the  facts,  and 
without  any  inequitable  incidents,  as  fraud,  concealment,  mis- 
representation, undue  influence,  violation  of  confidence,  etc., 
have  made  an  agreement  or  other  instrument  as  they  intended  it 
should  be,  and  the  writing  expresses  the  transaction  as  it  was 
understood  and  designed  to  be  made,  then  equity  will  not  grant 
relief,  although  one  of  the  parties  (or,  as  many  cases  hold,  both 
of  them)  have  mistaken  its  legal  meaning,  scope  and  effect.  An 
example  under  this  rule  is  found  in  the  celebrated  case  of  Hunt 
v.  Rousmanicre's  Adm'rs,  8  Wheaton,  174.  (S.  C.  1  Peters  1.) 
In  that  case  a  power  of  attorney  to  execute  a  bill  of  sale  of  a 
ship  was  taken  by  a  creditor  from  a  debtor  under  the  distinct 
impression,  induced  by  the  advice  of  counsel,  that  it  would  be 
as  valid  a  security,  under  all  circumstances,  as  a  mortgage.  The 
debtor  subsequently  died,  and  as  the  power  of  attorney  was  re- 
voked by  his  death,  the  security  of  the  creditor  was  invalidated. 
But  it  was  held  (in  strict  conformity,  it  will  be  seen,  with  Rule  I, 
supra)  that  the  misapprehension  of  the  parties  as  to  the  legal 
effect  of  the  instrument  was  not  ground  for  relief,  even  in  equity, 
and  of  course  it  would  not  be  at  common  law.  (See  Bispham's 
Equity,  Sec.  187.) 

Rule  II.  But  when  a  person  is  ignorant  or  mistaken  as  to  his 
own  antecedent  or  existing  legal  rights,  interests,  estates,  duties, 
liabilities  or  other  relations,  either  of  property  or  contract,  or 
personal  status,  and  enters  into  some  transaction,  the  legal  effect 
and  scope  of  which  he  correctly  understands  with  reference  to 
such  rights,  etc.,  but  which  transaction  he  would  never  have 
entered  into  if  he  had  known  the  nature  and  extent  of  his  rights, 
etc.,  then  equity  will  grant  relief,  treating  the  mistake  as  analo- 
gous to,  if  not  identical  with,  a  mistake  of  fact.  An  example 
under  this  second  rule  is  Bingham  v.  Bingham,  1  Vesey,  Sr., 
126,  where  the  defendant  sold  to  the  plaintiff  an  estate  which  in 
fact  belonged  to  the  plaintiff  already,  but  which  both  parties  be- 
lieved, under  a  mistake  caused  by  a  misconception  of  law,  to 
belong  to  the  defendant.  Relief  was  granted  in  equity,  and  re- 
turn of  the  purchase  money  was  decreed.  See  Adams'  Eq.  190. 
And  in  Lansdoivn  v.  Lansdown,  Mosley,  364,  where  the  eldest 
of  three  brothers  divided  land,  of  which  the  second  brother  had 
died  seised,  with  a  younger  brother  under  the  mistaken  impres- 


28  NOTES  TO  CLARK  ON    CONTRACTS 

sion  that  the  latter  and  not  himself  was  heir  at  law  to  the  second 
brother,  it  was  held  that  he  was  entitled  to  relief  in  equity,  and 
his  conveyance  to  the  younger  brother  was  set  aside.  It  will  be 
seen  that  the  elder  brother  correctly  understood  the  nature  and 
effect  of  his  conveyance  to  his  younger  brother,  but  he  never 
would  have  made  it  if  he  had  not  been  ignorant  of  the  nature 
and  extent  of  his  own  existing  rights  in  the  property.  So  his 
mistake  was  one  of  private  right  and  not  of  general  law,  which 
distinguishes  the  case  from  Hunt  v.  Rousmaniere's  Admrs, 
supra.  See  Z oilman  v.  Moore,  21  Gratt.  313,  criticised  in  2 
Pom.  Equity,  note  to  Sec.  849. 

23.  What  is  the  practical  test  by  which  to  distinguish  fraud 
from  innocent  misrepresentation?  See  Clark,  209,  where  the 
answer  is  that  "fraud  gives  rise  to  an  action  ex  delicto,  while 
innocent  misrepresentation  does  not.  Fraud,  besides  being  a 
vitiating  element  in  contract,  is  a  tort  or  wrong  apart  from 
contract,  and  may  be  treated  as  such  by  bringing  an  action  of 
deceit.  Misrepresentation  in  exceptional  cases  may  invalidate  a 
contract,  but  will  not  support  an  action  of  deceit."  A  good  ex- 
ample of  innocent  misrepresentation  is  found  in  Grim  v.  Byrd, 
32  Gratt.  293,  where  Grim,  induced  so  to  do  by  an  innocent  mis- 
representation, conveyed  to  Byrd  a  parcel  of  land  and  the  mill 
thereon,  known  as  "Craney  Island  Mills,"  in  consideration  of 
twenty  shares  of  stock  of  the  Rawley  Springs  Co.  Rescission 
was  decreed  and  the  court  held  "that  a  false  [i.  e.  unfounded] 
representation  of  a  material  fact,  constituting  an  inducement  to 
the  contract  on  which  the  purchaser  had  the  right  to  rely  [and 
did  rely],  is  a  ground  for  a  rescission  by  a  court  of  equity, 
although  the  party  making  the  representation  was  ignorant 
whether  it  was  true  or  false  [i.  e.  though  it  was  not  fraudulently 
made,  and  though  no  action  could  be  brought  to  recover  damages 
on  the  ground  of  fraud]." 

Grim  v.  Byrd  has  been  followed" in  numerous  cases  in  Virginia. 
And  it  is  also  held,  under  C.  V.  §  3299,  allowing  certain  equitable 
defences  to  be  made  at  law,  that  the  defendant  when  sued  in  an 
action  at  law  can  defend  himself  by  a  special  plea,  verified  by 
affidavit,  that  he  was  induced  to  enter  into  the  contract  by  mis- 
representations of  material  facts;  and  the  plea  is  good  without 


NOTES  TO   CLARK   ON    CONTRACTS  29 

any  allegation  that  the  plaintiff  knew  that  the  allegations  were 
false.  See  Guarantee  Co.  v.  National  Bank,  95  Va.  480,  where 
it  is  said  by  Judge  Riely  (at  p.  491),  speaking  of  misrepresenta- 
tions of  fact :  "it  was  immaterial  whether  the  plaintiff  knew  that 
they  were  false,  or  honestly  believed  them  to  be  true.  If  a  party 
innocently  misrepresents  a  material  fact  by  mistake,  the  effect 
is  the  same  on  the  party  who  is  misled  by  it  as  if  he  who  inno- 
cently made  the  misrepresentation  knew  it  to  be  positively  false. 
The  real  question  in  such  a  case  is  not  what  the  party  making 
the  representation  knew  or  believed,  but  was  the  representation 
false  [i.  e.  unfounded  in  fact],  and  was  the  other  party  misled 
"by  it."  To  this  proposition  are  cited  (besides  Grim  v.  Byrd) 
Lynchburg  Fire,  etc.,  Co.  v.  West,  76  Va.  575 ;  Wilson  v.  Carpen- 
ter, 91  Va.  183;  Max  Meadows,  etc.,  Co.  v.  Brady,  92  Va.  77. 
To  the  same  effect  are  Orr  v.  Goodloe,  93  Va.  263;  Wren  v. 
Moncure,  95  Va.  369,  and  other  cases. 

But  it  must  be  remembered  that  in  none  of  these  cases  of 
innocent  misrepresentation  was  an  action  at  law  brought  for 
damages  by  reason  of  fraud.  They  were  suits  in  equity  for 
rescission,  or  actions  upon  contract  where  the  defendant  relied 
on  the  misrepresentation  as  a  defence.  For  the  requisites  to 
enable  the  plaintiff  to  recover  damage  for  fraud,  see  the  next 
note. 

24.  What  is  necessary  to  constitute  fraud  for  which  an  action 
for  deceit  will  lie  to  recover  damages?  See  Clark,  229-230, 
where  it  is  said,  quoting  from  Lord  Cairns :  "If  persons  take 
upon  themselves  to  make  assertions  as  to  which  they  are  ignorant 
whether  they  are  true  or  untrue,  they  must  in  a  civil  point  of 
view  be  held  as  responsible  as  if  they  had  asserted  what  they 
knew  to  be  untrue."  But  this  language  of  Lord  Cairns  is  criti- 
cised in  the  great  case  of  Derry  v.  Peek,  L.  R.  14  App.  Cas.  337 
(decided  in  1889),  where  it  is  said  by  Lord  Herschell:  "This 
must  mean  that  the  persons  referred  to  were  conscious  when 
making  the  assertion  that  they  were  ignorant  whether  it  was 
true  or  untrue,  for  if  not,  it  might  be  said  of  any  one  who  in- 
nocently makes  a  false  statement.  He  must  be  ignorant  that  it  is 
untrue,  for  otherwise  he  would  not  make  it  innocently.  He  must 
be  ignorant  that  it  is  true,  for  by  the  hypothesis  it  is  false." 


30 

But  when  the  defendant  asserts  a  fact  to  exist,  or  not  to  exist, 
when  he  is  conscious  that  he  has  no  knowledge  on  the  subject, 
his  statement  if  false  is  also  fraudulent;  for  he  affirms  knowledge 
when  he  is  conscious  of  ignorance.  He  says  he  knows  when  he 
knows  that  he  does  not  know,  which  is  clearly  moral  fraud,  and 
when  it  works  an  injury  is  a  sufficient  scienter  to  support  an 
action  for  deceit.  But  Derry  v.  Peck,  supra,  holds  that  (except 
in  a  few  anomalous  cases  where  a  man  is  bound  to  know  the 
facts,  and  therefore  the  scienter  is  presumed)  a  statement  can 
never  be  fraudulent  if  made  by  the  defendant  ivith  an  honest 
belief  in  its  truth,  and  that  this  is  so  though  the  statement  is 
made  carelessly  and  without  reasonable  ground  to  believe  it 
true,  so  long  as  the  judge  or  jury  believe  it  was  made  bona  fide. 
It  is  said  in  Derry  v.  Peek  that  "the  authorities  establish  the 
following  propositions :  First.  In  order  to  sustain  an  action  of 
deceit,  there  must  be  proof  of  fraud,  and  nothing  short  of  that 
will  suffice.  Secondly.  Fraud  is  proved  when  it  is  shown  that 
a  false  representation  has  been  made  (1)  knowingly,  (2)  with- 
out belief  in  its  truth,  or  (3)  recklessly,  careless  whether  it  be 
true  or  false." 

The  doctrine  of  Derry  v.  Peek  that  a  false  statement  made 
through  carelessness,  and  without  reasonable  ground  for  believing 
it  to  be  true,  may  be  evidence  of  fraud,  but  does  not  necessarily 
amount  to  fraud,  has  been  changed  in  England,  as  to  Directors 
of  Companies,  by  the  "Directors'  Liability  Act,  1890."  Some 
of  the  recent  American  cases  adopt,  others  reject  the  doctrine. 
See  14  Harvard  Law  Review,  184.  For  cases,  and  further  dis- 
cussion, see  hereafter  under  "Torts." 

25.  Does  a  penalty  always  imply  prohibition?  See  Clark  261, 
et  seq.  In  Bartlctt  v.  Finer,  Carthew  252,  it  was  said  by  Lord 
Holt:  "Every  contract  made  for  or  about  any  matter  or  thing 
which  is  prohibited  and  made  unlawful  by  statute  is  a  void  con- 
tract, though  the  statute  does  not  mention  that  it  shall  be  so, 
but  only  inflicts  a  penalty  on  the  offender,  because  a  penalty 
implies  a  prohibition,  though  there  are  no  prohibitory  words  in 
the  statute."  But  in  Harris  v.  Runnels,  12  How.  79,  whether 
a  contract  to  do  an  act  penalized  by  statute  is  to  be  treated  as 
void  or  not,  is  said  to  depend,  in  all  cases,  on  the  legislative  in- 


NOTES  TO   CLARK  ON    CONTRACTS  31 

tent,  to  be  collected  from  all  the  circumstances  of  the  case,  the 
presumption  being  prima  facie  that  such  contract  is  void  unless 
the  contrary  appears  to  be  the  true  meaning  of  the  statute.  Thus 
in  Harris  v.  Runnels,  supra,  an  action  was  brought  for  the  price 
of  certain  slaves,  and  as  a  defense  it  was  pleaded  that  no  certifi- 
cate had  been  obtained,  previous  to  bringing  the  slaves  into  the 
State  of  Mississippi,  showing  that  they  had  not  been  guilty  of 
any  crime,  etc.,  as  was  required  by  a  law  of  that  State,  which 
imposed  a  fine  of  $100  for  every  slave  so  purchased  and  brought 
in.  But  the  court  held  that  the  plea  was  bad,  as  on  the  true 
construction  of  the  statute  the  penalty  was  not  intended  to  avoid 
the  contract.  So  in  Nicmeyer  v.  Wright,  75  Va.  239,  it  was 
held,  citing  Harris  v.  Runnels,  that  the  Virginia  statute,  which 
requires  under  heavy  penalty,  certain  things  to  be  done  by  per- 
sons selling  commercial  fertilizers  (labels  expressing  the  com- 
ponent parts  of  such  fertilizers,  etc.)  was  not  intended  to  avoid 
the  contract  for  such  sale  for  failure  to  comply  with  its  pro- 
visions. The  seller  recovered  on  the  contract  in  an  action  at 
law,  though  he  had  not  complied  with  the  directions  of  the 
statute ;  it  being  said  that  the  mere  imposition  of  a  penalty  for 
doing  or  omitting  to  do  an  act,  does  not  of  itself,  in  every  case, 
necessarily  imply  an  intention  of  the  legislature  that  every  con- 
tract in  contravention  of  the  statute  shall  be  void,  in  the  sense 
that  it  is  not  to  be  enforced  in  a  court  of  justice. 

26.  Arc  arrangements  to  purchase  property  on  joint  account 
at  an  auction  sale  valid?  Clark  258.  See  Barnes  v.  Morrison 
(97  Va.  372),  5  Va.  Law  Reg.  373,  where  the  cases  are  ex- 
amined, and  the  law  thus  declared,  as  stated  in  the  head-note: 
"Where  property  is  to  be  sold  at  auction,  and  especially  at  a 
judicial  sale,  or  at  a  sale  in  the  course  of  govenmental  'adminis- 
tration, a  secret  combination  and  agreement  amongst  persons 
interested  in  bidding  to  refrain  from  bidding,  in  order  to  pre- 
vent competition  and  to  lower  the  selling  price  of  the  property, 
is  illegal.  But  it  is  not  necessarily  corrupt  for  two  or  more 
persons  to  agree  that  one  of  them  shall  purchase  for  their  joint 
benefit  property  sold  at  a  judicial  or  other  public  sale.  Whether 
such  a  combination  is  lawful  or  otherwise  depends  upon  the  in- 
tention of  the  parties,  and  the  effect  of  the  arrangement  as  as- 


32  NOTES   TO  CLARK  ON   CONTRACTS 

certained  from  the  evidence  in  each  particular  case."  And  see 
editorial  note  on  Barnes  v.  Morrison,  by  Prof.  Lile,  5  Va.  Law 
Reg.  414,  where  it  is  said :  "The  real  test  in  such  cases  seems  to 
be  whether  the  combination  was  entered  into  bona  fide  to  carry 
out  some  particular  and  lawful  end  desired  by  the  participants, 
or  to  accommodate  the  peculiar  circumstances,  financial  or  other- 
wise, of  the  parties.  If  so,  even  though  the  effect  may  have 
been  to  depress  the  bidding,  the  motive  being  a  lawful  one, 
the  transaction  will  be  sanctioned  as  lawful." 

For  a  recent  case  by  the  Supreme  Court  of  the  United  States, 
declaring  illegal  a  combination  between  two  contractors  in  put- 
ting in  bids  for  the  construction  of  public  works,  see  McMullen 
v.  Hoffman,  174  U.  S.  639. 

In  Camp  v.  Bruce,  96  Va.  521,  it  is  held  that  a  purchaser  at  a 
judicial  sale  cannot,  before  confirmation,  sell  his  bargain  to 
another  at  an  advance  price.  The  court  said:  "We  have  no 
statute  declaring'  that  contracts  like  the  one  under  consideration 
are  unlawful,  yet  under  the  principles  of  the  common  law,  any 
contract  that  is  made  for  the  purpose  of,  or  whose  necessary 
effect  or  tendency  is,  to  lessen  competition  and  restrain  bidding 
at  judicial  sales,  is  held  to  be  illegal,  because  opposed  to  public 
policy.  The  object  in  all  such  sales  is  to  get  the  best  price  that 
•can  be  fairly  had  for  the  property.  The  policy  of  the  law,  there- 
fore, is  to  secure  such  sale  from  every  kind  of  improper  influ- 
ence. To  allow  one  bidder  to  buy  off  another,  which  is  but  a 
species  of  bribery,  and  thus  prevent  the  property  from  bringing 
the  best  price  [by  an  upset  bid  and  a  resale]  is  condemned  by  the 
law;  and  the  courts  will  not  enforce  contracts  founded  in  such 
practices." 

As  to  .the  effect  of  illegality,  the  court  said :  "The  law  refuses 
to  enforce  illegal  contracts  as  a  rule,  not  out  of  regard  for  the 
party  objecting,  nor  from  any  wish  to  protect  his  interest,  but 
from  reasons  of  public  policy.  Whenever,  therefore,  the  ille- 
gality of  the  contract  appears,  whether  alleged  in  the  pleadings, 
or  made  known  for  the  first  time  in  the  evidence,  it  is  fatal  to 
the  case.  That  defect  cannot  be  gotten  rid  of  either  by  failure 
to  plead  it,  or  by  agreeing  to  waive  it  in  the  most  solemn  man- 
ner. The  law  will  not  enforce  contracts  founded  in  its  viola- 
tion." 


NOTES  TO   CLARK   ON    CONTRACTS  33 

27.  Contracts  in  violation  of  Sunday  Laws.   See  Clark  265-270. 
The  Virginia  Statute,  Code,  Sec.  3799,  as  amended  by  Va.  Acts 
1908,  c.  180,  is  as  follows:  "If  any  person  on  the  Sabbath  day  be 
found  laboring  at  any  trade  or  calling,  or  employ  his  apprentices 
or  servants  in  labor,  or  other  business,  except  in  household  or 
other  work  of  necessity  or  charity,  he  shall  be  deemed  guilty  of 
a  misdemeanor,  and  upon  conviction  thereof  shall  be  fined  not 
less  than  $5  for  each  offence.     Every  day  any  person  or  servant 
or  apprentice  is  so  employed,  shall  constitute  a  distinct  offence, 
and  the  Court  in  which  or  the  justice  by  whom  any  judgment 
of  conviction  is  rendered,  may  require  of  the  person  so  convicted 
a  recognizance  in  a  penalty  of  not  less  than  $100  nor  more  than 
$5,000,  with  or  without  security,  conditioned  that  such    person 
shall  be  of  good  behavior,  and  especially  to  refrain  from  a  repeti- 
tion of  such  offence,  for  a  period    not  exceeding    12  months." 
See  Sec.  3800  for  exceptions  as  to  Jews  who  observe  the  seventh 
day  of  the  week.     See  also  Sec.  3801,  forbidding  transportation 
of   freight    by    railroads    on    Sunday,  which  has  been  declared 
constitutional  by  the  Virginia  Court  of  Appeals,  even  as  to  freight 
trains   engaged  in   interstate  commerce.      See  Norfolk,   etc.,  R. 
Co.  v.  Com.  of  Virginia,  93  Va.  749  (decided  June  11,  1896), 
overruling  Norfolk,  etc.,  R.  Co.  v.  Commonwealth,  88  Va.  95. 
See  also  Hennington  v.  State  of  Georgia,  163  U.  S.  299,  declar- 
ing a  similar  statute  of  the  State  of  Georgia  constitutional,  in 
the  absence  of  any  Act  of  Congress  governing  the  subject.     But 
see  now  Va.  Acts  1910,  p.  59,  c.  42,  permitting  trains  to  be  run 
on  Sunday  through  the  State  of  Virginia,  withqut  stopping  at 
local  stations  for  interchange  of  freight,  where  such  trains  con- 
stitute interstate  freight  trains  exclusively.     See  also  Acts  1910,( 
p.  471,  c.  310. 

28.  Usurious  Contracts.     See  Clark  270.     The  usury  laws 
were  abolished  in  England    by  17  and  18    Viet.  c.    90    (1855). 
But  such  laws  are  in  force  in  most  of  the  United  States.     The 
present  Virginia   Statute    (in   force  since   1874)    is   as   follows 
(Code,  Sec.  2817)  :  "Legal  interest  shall  continue  to  be  at  the 
rate  of  six  dollars  on  one  hundred  dollars  for  a  year,  and  pro- 
portionally for  a  greater  or  less  sum,  or  for  a  longer  or  shorter 
time;  and  no  person  upon  any  contract  shall  take  for  the  loan 


34  NOTES  TO   CLARK  ON   CONTRACTS 

or  forbearance  of  money  or  other  thing  above  the  value  of  such 
rate."  And  by  section  2818  it  is  declared  that  all  contracts,  etc., 
violating  the  preceding  section  "shall  be  deemed  to  be  for  an 
illegal  consideration  as  to  the  excess  beyond  the  principal  amount 
so  loaned  or  forborne."  The  effect  of  this  is  that  if  the  lender 
of  money  contracts  for  over  six  per  cent,  interest,  he  can  collect 
only  the  bare  principal  without  any  interest.  But  this  does  not 
apply  to  the  holder  of  a  negotiable  note  who  has  bought  it  for 
value  without  notice  of  the  usury;  and  such  holder  can  recover 
six  per  cent,  interest  of  the  maker,  though  the  payee  had  con- 
tracted for  over  six  per  cent. ;  for  the  note  is  not  void  as  to  the 
interest,  but  is  "deemed  to  be  for  an  illegal  consideration," 
which  renders  it  voidable  only,  as  to  the  excess  of  interest;  and 
a  defence  which  renders  a  negotiable  instrument  voidable,  is  un- 
availing against  a  holder  for  value  without  notice.  See  Lynch- 
burg  National  Bank  v.  Scott,  91  Va.  652.  For  the  effect  of  a 
statute  declaring  a  usurious  contract  void,  as  distinguished  from 
illegal,  see  Clark,  270,  and  cases  cited  in  Lynchburg  National 
Bank  v.  Scott,  supra. 

29.  What  is  the  status  of  wagering  contracts?  Clark  275-7. 
By  8  and  9  Viet.  c.  109:  "All  contracts  and  agreements,  whether 
by  parol  or  in  writing,  by  way  of  gaming  or  wagering,  shall  be 
null  and  void."  In  Virginia  by  Code,  Sec.  2836,  "Every  contract, 
conveyance  or  assurance,  of  which  the  consideration,  or  any  part 
thereof,  is  money,  property  or  other  thing,  won  or  bet  at  any 
game,  sport,  pastime  or  wager,  or  money  lent  or  advanced  at 
the  time  of  any  gaming  or  betting  or  wagering  to  be  used  in  be- 
ing so  bet  or  wagered  (when  the  person  lending  it  or  advancing 
it  knows  that  it  is  to  be  so  used)  shall  be  void."  For  recovery 
of  money  or  property  lost  at  gaming  ($7.00  or  more  lost  in  24 
hours,  or  property  of  that  value),  see  Code,  Sec.  2837,  which  to 
this  extent  sets  aside  the  maxim  in  pari  delicto  portior  est  con- 
ditio  defendentis  out  possidentis.  See  also  Code  Va.  Sec.  2838- 
'39.  It  must  be  remembered  that  at  Common  Law  wagers  are 
valid  unless,  (1)  against  public  policy,  as  bets  on  an  election,  or 
on  the  acquittal  of  a  prisoner,  etc.;  or  (2)  injurious  to  private 
character  or  feelings,  as  a  bet  on  the  sex  of  a  person  who  wore 
man's  clothing  (celebrated  case  of  Da  Costa  v.  Jones,  Cowper, 


NOTES   TO   CLARK   ON    CONTRACTS  35 

729,  as  to  the  sex  of  the  Chevalier  D'Eon),  or  as  to  whether  an 
unmarried  woman  would  have  a  child  by  a  certain  day,  etc. 
Dichurn  v.  Goldsmith,  4  Camp.  152. 

30.  What  are  lobbing  contracts?     Clark,  285-6.     See  Trist  v. 
Child,  21  Wall.  441,  where  a  contract  to  pay  a  lawyer  for  get- 
ting a  special  act  through  Congress,  appropriating  money  to  sat- 
isfy a  claim,  was  held  void  by  the  Supreme  Court  of  the  United 
States,  as  contemplating  the  procuring  of  legislation  by  lobbying 
services.   The  nature  of  such  services  is  indicated  by  this  extract 
from  a  letter  written  by  the  lawyer  to  his  client:  "Please  write 
to  your  friends  to  write  to  any  member  of  Congress ;  every  vote 
tells  and  a  simple  request  may  procure  a  vote,  he  not  caring  any- 
thing about  it.     Set  every  man  you  know  at  work,  even  if  he 
knows  a  page,  for  a  page  often  gets  a  vote."  But  the  court  said : 
"We  entertain  no  doubt  that  in  such  cases,  as  under  all  other 
circumstances,   an  agreement,   expressed  or  implied,   for  purely 
professional  services  is  valid.     Within  this  category  are  included 
drafting  the  petition  to  set   forth  the  claim,   attending  to  the 
taking  of  testimony,  collecting  facts,  preparing  arguments,  and 
submitting  them  orally  or  in  writing  to  a  committee  or  other 
proper  authority,  and  other  services  of  like  character." 

And  see  Code  Virginia,  Sec.  3746-'7,  which  punish  as  a  mis- 
demeanor "lobbying  with  the  General  Assembly;"  but  by  Sec. 
3748  the  two  preceding  sections  "shall  not  apply  to  any  person 
who  may  be  invited  by  or  have  the  permission  of  any  regular  or 
special  committee  of  the  General  Assembly  to  appear  before  it, 
either  for  or  against  any  measure."  See  Clark,  286. 

31.  When  is  a  compromise  of  a  prosecution  permissible?   See 
Clark,  292-3.    The  test  in  the  English  case  (Kcir  v.  Leeman,  6 
Q.  B.  321),  mentioned  on  page  294,  that  a  compromise  is  lawful 
where  civil  and  criminal  remedies  co-exist   (i.  e.,  where  the  in- 
jured party  can  sue  for  damages  as  well  as  prosecute  for  the 
crime)  can  hardly  be  applicable  now  in  Virginia,  where  it  is  pro- 
vided by  statute  that  "the  commission  of  a  felony  shall  not  stay  or 
merge  any  civil  remedy"  (Code,  §  3884)  ;  and  where  the  personal 
representative  of  a  person  whose  death  is  caused  by  the  "wrong- 
ful act,  neglect  or  default,  of  another,"  can  sue  that  other  for 
damages,  although  the  death  may  have  been  caused  "under  such 


36  NOTES  TO  CLARK  ON   CONTRACTS 

circumstances  as  amount  in  law  to  a  felony."  Code  Virginia,  § 
2902;  Matthews  v.  Warner's  Admr.,  29  Gratt.  570.  It  is  be- 
lieved that  prosecutions  can  be  compromised  for  misdemeanors 
only,  not  for  felonies,  and  for  such  misdemeanors  only  as  are 
considered  to  affect  mainly  the  individual  prosecuting.  Thus, 
an  indictment  for  assault  may  be  compromised  at  common  law, 
provided  the  offence  is  confined  to  personal  injury,  and  is  not 
accompanied  by  riot,  or  obstruction  of  a  public  officer  in  the 
execution  of  his  duty.  See  Keir  v.  Leeman,  supra.  The  Vir- 
ginia Statute  enacts  as  follows  (Code,  Sec.  3973)  :  "When  a 
person  is  in  jail  or  under  recognizance  to  answer  a  charge  of 
assault  and  battery  or  other  misdemeanor  for  which  there  is 
remedy  by  civil  action,  unless  the  offence  was  committed  by  or 
upon  a  sheriff  or  other  officer  of  justice,  or  riotously,  or  with 
intent  to  commit  a  felony,  if  the  party  injured  appear  before  the 
judge  or  justice  who  made  the  commitment  or  took  the  recogni- 
zance, and  acknowledged  in  writing  that  he  has  received  satis- 
faction for  the  injury,  such  judge  or  justice,  in  his  discretion, 
may,  by  an  order  under  his  hand,  supersede  the  commitment  or 
discharge  the  recognizance  as  the  accused  and  witnesses." 

32.  What  is  the  status  of  maintenance  and  champerty  in  the 
United  States?  Clark,  296.  For  full  discussion,  see  monograph- 
ic note  to  Thallhimcr  v.  Brinckerhoff,  3  Cowen  (N.  Y.)  683- 
(S.  C.  15  Am.  Dec.  308).  It  is  there  said  that  the  States  of  the 
Union  may  be  divided  as  to  maintenance  and  champerty  in  three 
classes.  (1)  In  a  few  States  there  is  no  such  thing  as  cham- 
perty or  maintenance.  This  is  said  to  be  the  case  in  California 
and  Texas,  and  their  existence  is  doubtful  in  Vermont,  Con- 
necticut and  Missouri.  (2)  In  a  second  class  of  States,  the 
strict  English  rule  is  in  force,  and  it  is  champerty  for  a  lawyer 
to  agree  to  carry  on  a  law  suit  for  a  share  of  the  proceeds  as  his 
compensation  for  services,  even  though  he  is  to  make  no  dis- 
bursements and  the  client  undertakes  to  pay  the  expenses  and 
costs.  This  rule  is  said  to  exist  in  Kentucky,  Indiana,  Ohio,  Mich- 
igan, Rhode  Island,  and  Massachusetts.  (3)  A  third  group  of 
States  have  adopted  a  middle  rule  by  which,  although  the  lawyer 
is  to  be  paid  for  his  services  out  of  the  proceeds,  still  it  is  not 
champerty  unless  he  also  agrees  to  bear  the  expenses  and  costs. 


NOTES   TO   CLARK  ON    CONTRACTS  37 

This  modified  rule  is  said  to  exist  in  New  Jersey,  Illinois,  Wis- 
consin, Mississippi,  Tennessee,  Georgia,  Iowa  and  North  Caro- 
lina. It  certainly  exists  in  the  Supreme  Court  of  the  United 
States,  and  in  Virginia.  See  Wright  v.  Tibbetts,  91  U.  S.  252. 
In  Nickels  v.  Kane's  Administrator,  82  Va.  309,  it  was  held  that 
champerty  is  a  bargain  for  a  portion  of  the  matter  sued  for,  by 
which  the  champertor  undertakes  to  carry  on  the  suit  at  his  own 
expense,  but  that  it  is  not  champerty  where  the  attorney  does 
not  agree  to  pay  the  expenses  of  the  suit ;  and  that  where  the  de- 
fendant agreed  with  an  attorney  to  pay  him  ten  per  cent,  of  the 
amount  by  which  he  should  succeed  in  getting  a  certain  decree 
reduced,  but  the  attorney  did  not  undertake  to  bear  the  costs,  it 
was  not  champerty,  but  a  valid,  enforceable  contract. 

As  to  Vermont,  the  existence  of  champerty  in  that  State  was 
doubtful,  as  is  stated  above;  but  in  the  recent  case  of  Hamilton 
v.  Gray,  67  Vt.  233,  champerty  is  recognized  as  at  common  law. 

33.  What  is  a  marriage  brocage  (or  brokerage}  contract!   See 
Clark  302-4.    An  example  is  found  in  Johnson  v.  Hunt,  81  Ky. 
321,  where  in  defence  to  an  action  on  a  promissory  note  it  was 
pleaded  by  the  maker  that  he  had  undertaken  to  assist  his  grand- 
father, the  payee  of  the  note  (an  old  man  aged  77),  in  getting 
married,  and  had  written  letters  to  a  young  lady  on  his  behalf, 
etc.,  and  that  as  compensation  for  such  services  the  grandfather 
had  agreed  to  release  and  give  up  the  note  in  controversy.    Held, 
that  the  defence  was  bad,  as  it  clearly  showed  a  marriage  brocage 
contract,  the  grandson   (the  defendant)    undertaking  to  aid  in 
bringing  about  a  marriage  in  consideration  of  the  surrender  by 
his  grandfather  of  the  note  for  $5,000. 

34.  What  is  the  present  status  in  England  and   the   United 
States  of  contracts  in  restraint  of  trade ?     Clark,  305-311.     It 
was  formerly  thought  that  the  rule  that  the  restraint  must  be 
reasonable,   always   forbade  contracts  where  the   restraint   zvas 
unlimited  as  to  space   as  being  necessarily  unreasonable;   and 
even  that  a  contract  restraining  one  from  carrying  on  his  trade, 
etc.,  in  England  was  in  its  nature  unreasonable,  against  public 
policy,  and  void.     But  in  the  recent  English  case  of  Roussillon 
v.  Roussillon,  14  Ch.  D.  351,  it  was  held  that  a  contract  unlimited 
in  point  of  space,  whereby  the  defendant  agreed  not  to  establish 


38  NOTES  TO   CLARK   ON   CONTRACTS 

himself  in  the  champagne  trade,  was  not,  under  the  circum- 
stances of  that  trade,  unreasonable,  and  might  be  enforced.  And 
see  now  The  Ma.vim-Nordenfelt  Gun  Co.  v.  Nordenfclt  [1894] 
A.  C.  549,  where  it  is  decided  by  the  House  of  Lords  that  a  re- 
straint general  as  to  space  may  be  valid,  if  reasonable,  under  the 
circumstances  of  the  case,  for  the  protection  of  the  covenantee, 
provided  it  is  not  injurious  to  the  public  interest. 

In  the  very  recent  case  of  Diamond  Match  Co.  v.  Roeber,  106 
N.  Y.  473  (60  Am.  Rep.  464),  where  a  contract  was  made  by 
the  seller  with  the  buyer  that  he  would  not  at  any  time  within 
99  years,  directly  or  indirectly,  engage  in  the  manufacture  or 
sale  of  friction  matches  (unless  as  agent  of  the  buyer),  in  the 
United  States  or  Territories  or  the  District  of  Columbia,  except- 
ing the  State  of  Nevada  and  the  then  Territory  of  Montana,  the 
court  intimated  that,  if  it  were  necessary,  they  would  hold  that  a 
contract  in  general  restraint  of  trade  is  not  always  and  neces- 
sarily unreasonable  and  void;  but  they  said  that  they  were  not 
called  on  to  decide  that  question,  as  in  the  case  at  bar  the  excep- 
tion of  Montana  and  Nevada  made  the  contract  in  partial  re- 
straint of  trade  only,  the  whole  United  States  in  this  connection 
being  considered  one  country.  And  see  Foufle  v.  Park,  131  U. 
S.  88. 

35.  What  ivere  the  precise  facts  of  Waugh  v.  Morris,  cited 
in  Clark,  325-6.  The  charter-party  provided  that  the  cargo 
(bales  of  pressed  hay)  should  be  taken  to  the  port  of  London 
and  there  "delivered  alongside."  The  plaintiff  did  not  agree  by 
the  charter-party  to  land  it  there.  Afterwards,  landing  at  Dept- 
ford  Creek  (within  port  of  London)  was  suggested  by  the  de- 
fendant, and  assented  to  by  the  plaintiff.  But  when  this  mode 
of  performance  was  found  to  be  illegal  it  was  abandoned,  and 
another  and  legal  mode  (delivery  alongside,  followed  by  expor- 
tation) was  substituted. 


36.  Relief  to  party  to  unlawful  agreement.  See  Clark,  336.  For 
full  discussion  of  this  subject  and  a  strict  application  of  the 
maxim  "in  pari  delicto  portior  est  conditio  defendentis,"  see 
McMullen  v.  Hoffman,  174  U.  S.  639  (note  26  supra),  com- 
menting on  the  cases  of  Brooks  v.  Martin,  2  Wall.  70,  and  Sharp 
v.  Taylor,  2  Phillips,  Ch.  801.  As  to  the  latter  case,  see  Bisp- 


NOTES   TO   CLARK  ON    CONTRACTS  39 

ham's  Eq.,  §42;  1  Pomeroy,  Eq.  Jur.,  p.  442,  note  2.     As  to 
Brooks  v.  Martin,  see  Clark,  337,  n.  330. 

In  Cardwell  v.  Kelley,  95  Va.  570,  an  action  was  brought  by 
the  receiver  of  an  insolvent  corporation  against  a  stockholder,  to 
recover  a  stock  subscription  for  the  benefit  of  creditors  whose 
debts  were  contracted  on  the  faith  of  his  and  other  subscriptions. 
The  contract  of  subscription  was  lawful  on  its  face,  and  the 
creditors  had  no  knowledge  of  any  taint  by  reason  of  illegality. 
The  stockholder  pleaded  that  he  was  allured  into  making  the 
subscription  by  the  chance  of  obtaining  one  or  more  lots,  in  a 
drawing  for  distribution  of  lots  of  unequal  value,  in  the  nature 
of  a  lottery,  contrary  to  C.  V.  §§  3285-'6.  The  court  did  not 
decide  whether  the  scheme  amounted  to  a  lottery  or  not ;  but  held 
that  even  if  it  was  illegal,  yet  the  stockholder  could  not  repu- 
diate his  contract  of  subscription  as  against  the  creditors  of  the 
insolvent  corporation.  The  maxims  'nemo  allegans  turpitudinem 
suam  audiendus,"  and  "in  pari  delicto  potior  est  conditio  defen- 
dentis"  were  discussed  by  the  court ;  and  it  was  declared  that  in 
a  case  of  the  nature  of  that  at  bar  the  court  will  consider  whether 
the  good  of  the  public  and  the  policy  of  the  law  will  be  subserved, 
and  the  making  of  such  contracts  be  discouraged,  by  enforcing 
the  contract,  or  by  refusing  to  do  so;  and  that  to  enforce  the 
contract  in  this  case  would  defeat  the  illegal  purpose  of  the  par- 
ties to  it,  and  tend  to  deter  other  persons  from  entering  into 
similar  contracts.  To  refuse  to  enforce  it  would  encourage  the 
making  of  such  contracts ;  for  if  the  venture  succeeded,  the  par- 
ties would  reap  the  profits ;  and  if  it  failed,  they  would  suffer 
no  loss.  See  Tate  v.  Building  Ass'n,  97  Va.  74. 

37.  What  is  the  rule  in  Virginia  as  to  the  application  of  pay- 
ments, where  no  application  has  been  made  by  either  debtor  or 
creditor?  Clark,  437-39,  citing  Smith  v.  Lloyd,  11  Leigh  (Va.) 
512,  which  followed  the  law  as  laid  down  by  the  Supreme  Court 
of  the  United  States  in  the  cases  quoted  from  by  Clark  on  p. 
408.  In  Coles  v.  Withers,  33  Gratt.  186,  it  is  said  by  Staples, 
J.:  "This  court  has  repeatedly  held  that  no  general  rule  appli- 
cable to  every  case  could  be  adopted  and  adhered  to  without 
producing  great  hardships.  If  neither  party  has  made  the  ap- 
plication, the  court  will  exercise  a  sound  discretion,  and  make 


40  NOTES   TO   CLARK  ON    CONTRACTS 

the  application  according  to  its  own  notions  of  what  may  be  right 
and  proper  in  the  particular  case."  He  adds:  "It  must  be  ad- 
mitted that  this  is  a  very  loose  and  indefinite  way  of  expressing 
a  principle  of  law,  but  it  has  been  declared  by  very  eminent 
judges."  See  in  accord,  Chapman  v.  Com.,  25  Gratt.  721. 

In  Pope  v.  Transparent  Ice  Co.,  91  Va.  79,  it  is  said  by  Keith, 
P. :  "There  is  some  diversity  of  authority,  as  courts  have  in- 
clined to  the  common  law  rule  that  the  application  was  to  be 
made,  where  not  otherwise  directed,  in  the  interest  of  the  cred- 
itor, or  to  the  rule  of  the  civil  law  that,  under  such  circum- 
stances, regard  was  to  be  had  primarily  to  the  interest  of  the 
debtor.  The  great  weight  of  authority  seems  to  be  that  in  such 
a  case  as  that  now  under  consideration,  where  the  court  has  no 
peculiar  fact  to  aid  its  discretion,  the  application  must  be  made 
to  the  debt  which  is  least  secured,  or  in  other  words  in  the  in- 
terest of  the  creditor;  and  this  seems  to  have  been  the  principle 
of  Chapman  v.  Com.,  25  Gratt.  721,  where  it  was  applied  to  the 
oldest  debt,  and  the  law  as  recognized  in  Coles  v.  Withers, 
where  it  is  said  that  in  such  a  case  it  should  be  applied  to  the 
least  secured  or  most  precarious  debt."  In  this  case,  however, 
it  was  immaterial  to  the  debtor  to  which  of  the  two  debts  due 
the  same  creditor  the  fund  was  applied,  though  it  was  of  vital 
importance  to  the  creditor.  With  reference  to  the  endorser  of  the 
better  secured  debt  (to  which  the  payment  was  not  applied,  but 
to  the  other  as  more  precarious)  the  Court  held  that  in  such 
a  case  the  interest  of  the  endorser  (to  have  the  debt  on  which 
he  is  liable  discharged)  is  not  to  be  considered;  since  to  allow 
the  endorser  to  direct  the  application  of  the  payment  would  be 
inequitable,  as  this  would  defeat  the  end  of  suretyship,  and  leave 
the  creditor  a  loser.  And  see  to  the  same  effect  Coles  y.  With- 
ers, 33  Gratt.  186. 

38.  Is  the  doctrine  of  Frost  v.  Knight  and  Hochster  v.  Dela- 
tour,  as  to  "anticipatory  breach,"  law  in  Virginia?  Clark,  444-7. 
Yes ;  see  Burke  v.  Shaver,  92  Va.  345 ;  James  v.  Kibler,  94  Va. 
165 ;  and  Lee  v.  Mutual,  etc.,  Life  Ass'n,  97  Va.  160. 

In  Burke  v.  Shaver  it  is  said :  "Where  one  repudiates  his 
promise,  and  declares  that  he  will  not  be  bound  by  it,  the  party 
not  in  default  need  not  wait  for  the  time  of  performance  to  ar- 


NOTES   TO   CLARK  ON    CONTRACTS  41 

rive ;  and  when  the  engagement  is  general,  need  not  request  the 
fulfillment  of  the  promise,  but  may  sue  at  once."  Citing  2  Am, 
&  Eng.  Ency.  Law,  524.  And  in  Lee  v.  Mutual  Life  Ass'n, 
supra,  it  is  said :  "In  England  and  a  number  of  the  States  of 
this  country,  including  Virginia,  it  is  held  that  where  there  has 
been  a  total  refusal  on  the  part  of  one  of  the  contracting  parties 
to  perform  the  contract  on  his  part,  the  other  may  elect  to  sue 
at  once,  without  waiting  for  the  time  of  performance  to  arrive. 
James  v.  Kibler,  94  Va.  165 ;  Hochster  v.  Delatour,  2  E.  &  B. 
678.  But  in  order  to  do  this  there  must  be  a  distinct,  un- 
equivocal, and  absolute  refusal  to  perform  the  contract."  See 
Johnstone  v.  Milling,  16  Q.  B.  Div.  460;  Dingley  v.  Oler,  117 
U.  S.  490;  Roehm  v.  Horst,  178  U.  S.  1. 

39.  Are  installment  contracts  divisible  or  indivisible?  Clark, 
453-6.  The  doctrine  of  the  Supreme  Court  of  the  United  States, 
as  laid  down  in  Harrington  v.  Wright,  115  U.  S.  188  (see  also 
Cleveland  Rolling  Mills  Co.  v.  Rhodes,  121  U.  S.  254),  is  that 
mercantile  contracts  providing  for  delivery  by  installments  are 
indivisible;  and  that  a  failure  to  keep  the  terms  of  the  contract 
as  to  any  installment  discharges  the  contract,  following  the  Eng- 
lish case  of  Hoare  v.  Rennie,  5  H.  &  N.  19.  Thus,  in  Norring- 
ton  v.  Wright,  it  is  said  by  Gray,  J.  (speaking  for  the  court)  : 
"In  the  contracts  of  merchants  time  is  of  the  essence.  The  time 
of  the  shipment  is  the  usual  and  convenient  means  of  fixing  the 
probable  time  of  arrival  with  a  view  of  providing  funds  to  pay 
for  the  goods,  or  of  fulfilling  contracts  with  third  persons.  A 
statement  descriptive  of  the  subject  matter,  or  of  some  material 
-incident,  such  as  the  time  or  place  of  shipment,  is  ordinarily  to 
be  regarded  as  a  warranty  in  the  sense  in  which  that  term  is 
used  in  insurance  and  maritime  law,  that  is  to  say,  a  condition 
precedent  upon  the  failure  or  non-performance  of  which  the 
party  aggrieved  may  repudiate  the  whole  contract."  For  a  case 
"which  lights  this  doctrine  on  the  outer  edge,"  see  Filley  v. 
Pope,  115  U.  S.  213,  where  the  contract  was  for  shipment  of 
500  tons  of  pig-iron  from  Glasgow,  Scotland,  to  New  Orleans, 
and  the  buyer  was  discharged  from  the  contract  because  the 
seller  shipped  the  iron  from  Leith,  Scotland,  though  this  was 
done  because  of  the  difficulty  of  obtaining  a  vessel  at  Glasgow, 


42  NOTES  TO  CLARK  ON   CONTRACTS 

and  though  the  iron  arrived  at  New  Orleans  sooner  than  it 
would  have  arrived  by  the  first  vessel  that  could  have  been  ob- 
tained at  Glasgow. 

In  Norrington  v.  Wright,  supra,  the  contract  was  made  in 
Philadelphia  for  the  sale  of  "5,000  tons  old  T  iron  rails,  for 
shipment  from  a  European  port  or  ports,  at  the  rate  of  about 
one  thousand  (1,000)  tons  per  month,  beginning  February,  1880, 
but  whole  contract  to  be  shipped  before  August  1,  1880."  The 
sellers  shipped  400  tons  in  February,  and  885  tons  in  March. 
Held,  that  this  was  such  default  on  the  sellers'  part  as  discharged 
the  buyers.  The  court  said:  "The  times  of  shipment  as  desig- 
nated in  the  contract  are  at  the  rate  of  about  1,000  tons  per 
month,  beginning  February,  1880,  but  whole  contract  to  be  ship- 
ped before  August  1,  1880.  These  words  are  not  satisfied  by 
shipping  one-sixth  part  of  the  5,000  tons,  or  about  833  tons,  in 
each  of  the  six  months  which  begin  with  February  and  end  with 
July.  But  they  require  about  1,000  tons  to  be  shipped  in  each 
of  the  five  months  from  February  to  June  inclusive,  and  allow 
no  more  than  slight  and  unimportant  deficiences  in  the  ship- 
ments during  those  months  to  be  made  up  in  the  month  of  July." 

40.  What  zvere  the  facts  in  Bettini  v.  Gye?  Clark,  457-8.  In 
1  Q.  B.  D.  188,  it  is  said :  "If  the  plaintiff's  engagement  had  been 
only  to  sing  in  operas  at  the  theatre,  it  might  very  well  be  that 
previous  attendance  at  rehearsals  with  the  actors  in  company 
with  whom  he  was  to  perform  was  essential.  And  if  the  engage- 
ment had  only  been  for  a  few  performances,  or  for  a  short  time, 
it  would  afford  a  strong  argument  that  attendance  for  the  pur- 
pose of  rehearsals  during  the  six  days  immediately  before  the 
commencement  of  the  engagement  was  a  vital  part  of  the  agree- 
ment. As  far  as  we  can  see,  the  failure  to  attend  the  rehearsals 
during  the  six  days  immediately  before  the  30th  day  of  March, 
could  only  affect  the  theatrical  performances,  and  perhaps  the 
singing  in  duets  and  concerted  pieces,  during  the  first  week  or 
fortnight  of  this  engagement,  which  is  to  sing  in  theatres,  halls, 
and  drawing  rooms  and  concerts,  for  fifteen  weeks.  We  think, 
therefore,  that  it  does  not  go  to  the  root  of  the  matter  so  as  to 
require  us  to  consider  it  a  condition  precedent.  The  defendant 


NOTES  TO   CLARK  ON    CONTRACTS  43 

must,  therefore,  we  think,  seek  redress  by  a  cross  claim  for  dam- 
ages." 

41.  What  is  the  best  definition  of  a  warranty  as  distinguished 
from  a  condition?    See  Clark,  465 ;  also  Anson,  page  304,  note 
(a),  where  it  is  said  that  "a  warranty  is  an  independent,  sub- 
sidiary promise,  collateral  to  the  main  object  of  the  contract." 
Its  breach  does  not  discharge  the  contract,  but  gives  rise  to  an 
action  for  damages.    Thus,  on  the  executed  sale  of  a  horse,  with 
warranty  of  soundness,  the  breach  of  the  warranty  does  not  au- 
thorize the  buyer  to  treat  the  sale  (the  main  object  of  the  con- 
tract)  as  void.     The  warranty  is  collateral  to  the  main  object 
and   subsidiary  merely ;  hence   the   buyer   must  keep   the   horse 
(the  title  to  which  has  passed  to  him),  and  sue  the  seller  for 
damages  for  the  breach  of  the  warranty. 

42.  Is  Paradine  v.  Jane  now  law  in  Virginia?     Clark,  473-4. 
No.     By  Code  Virginia,  Sec.  2455,  it  is  enacted :     "No  covenant 
or  promise  by  a  lessee  to  pay  the  rent,  or  that  he  will  leave  the 
premises  in  good  repair,  shall  have  the  effect,  if  the  buildings 
thereon  are  destroyed  by  the  fire  or  otherwise  without  fault  or 
negligence  on  his  part,  or  if  he  be  deprived  of  the  possession  of 
the  premises  by  the  public  enemy,  of  binding  him  to  make  such 
payment,  or  erect  such  buildings,  unless  there  be  other  words 
showing  it  to  be  the  intent  of  the  parties  that  he  should  be  so 
bound."    The  statute  then  provides  for  "a  reasonable  reduction  of 
the  rent,"  while  the  tenant  is  deprived  of  the  premises,  or  until  the 
buildings  destroyed  are  replaced  by  others  of  as  much  value  to 
the  tenant  for  his  purposes  as  those  destroyed. 

43.  Does  part  payment  of  principal,  or  payment  of  interest, 
remove  in  Virginia  the  bar  of  the  Statute  of  Limitation?    Clark, 
496.     No;  such  payment  has  no  effect  in  Virginia.     There  must 
be  a  promise  in  writing  to  pay  the  debt  or  such  an  acknowledg- 
ment of  the  debt  in  writing  that  a  promise  to  pay  may  be  in- 
ferred therefrom.     See  Cover  v.  Chamberlain,  .83  Va.  286.     But 
part  payment  of  the  principal,  or  payment  of  interest,  is  suffi- 
cient to  remove  the  bar  of  the  statute  in  England  and  in  the 
United  States  generally. 


PAMPHLET  BINDER" 

Syracuse,  N.  Y. 
Stockton,  Colif. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


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